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Paul Brandus

Sept. 21, 2020, 10:51 a.m. EDT

Why Trump and McConnell may not be able to choose Ginsburg’s successor at the Supreme Court

By Paul Brandus

“My most fervent wish is that I will not be replaced until a new president is installed.” These were among the last words uttered by Ruth Bader Ginsburg, to her granddaughter, before the Supreme Court justice died Friday evening at the age of 87. The conversation was first reported by National Public Radio. 

But it is a dying wish that, if President Donald Trump has his way, will go unfulfilled. A sitting president has every right to nominate whomever he (or she) wants for the high court of course, and Trump, coincidentally just days ago, floated several deeply conservative names. 

Breaking news: Trump says he’ll name Supreme Court pick on Friday or Saturday

What happens now? Democrats tried and failed to stop Trump’s first two nominees, Neil Gorsuch and Brett Kavanaugh, from being confirmed. The Kavanaugh fight was particularly brutal and drawn-out, after allegations of sexual misconduct were leveled by no less than three women. The White House will have to do a better job of vetting if it wants to avoid an embarrassing rerun of that mess.

The math hasn’t changed. Democrats, on paper, still lack the votes to stop Trump. However, several variables come into play.

For starters, the three key Republican players—Trump, Senate Majority Leader Mitch McConnell, and Judiciary Committee Chairman Lindsey Graham, are all up for re-election in November. Two of them—Trump and Graham—look to be in trouble.

In politics, self-preservation is always job one. Trump and Graham are worried about saving their skin (McConnell looks in better shape in his race), and perhaps may not be able to spend as much time on a pre-election confirmation as many people seem to assume. This suggests the real fight will come after the election is decided. 

Also read: Biden to senators: Extinguish the ‘flames’ engulfing U.S. politics by not ‘jamming’ through a Supreme Court justice

Usually, these things play out over many weeks. Over the last half-century it has taken about 10 weeks—71 days to be exact—for the average nominee to be confirmed. Kavanaugh’s confirmation, at 89 days, was an outlier.  

B ut this is 2020. Graham has shown himself to be such a craven hypocrite, so contemptuous and disrespectful of the Senate procedures he once claimed to revere, that he could just schedule a quick Judiciary Committee vote and ram Trump’s nominee through. Who cares what Democrats think? Republicans have the votes. 

That would send the nomination to the full Senate itself for a final vote, and again, Republicans, with 53 seats, have the votes.   

The only hope Democrats have here is for four Republican senators to buck the party line and slow things down. Already there are two.

Maine’s Susan Collins, whose re-election bid is in serious trouble because of her support for Kavanaugh in 2018), says she won’t vote to back a nominee so close to election—nor would she in a lame duck if there’s a change in presidents.  

Alaska’s Lisa Murkowski is also not on board. “I would not vote to confirm a Supreme Court nominee,” she said Friday. 

That’s two Republican senators who aren’t on the Trump train. That brings the Republican vote to 51—one more than the 50 they’d need to put Trump’s pick on the court. 

50? Don’t they need a majority of 51? No. Because a 50-50 tie, should that occur, would be broken by Vice President Mike Pence. 

So it would appear that Republicans are in pretty good shape. But are they? Consider that Utah’s Mitt Romney—the only Republican senator who voted to convict in Trump’s impeachment trial—could stick it to the president once again. That brings the GOP tally down to 50, but that would still be safe, given the Pence tiebreaker.    

Colorado’s Cory Gardner could also bolt. He’s in a very tough re-election fight in a state that rejected Trump in 2016. Voting to ram through Trump’s nominee wouldn’t exactly help his prospects back home.   

Neither Romney nor Gardner have said what they’ll do. McConnell needs to corral just one of them. 

What happens if a nominee isn’t approved by Election Day?

Then it could really get messy. First, we’re probably not going to know who the next president will be on Nov. 3, and we might not know for a few weeks. The 2000 Gore-Bush debacle dragged on for five weeks, after all—and that was because of a dispute in just one state: Florida. The way things are shaping up this year, there could be simultaneous, postelection messes in numerous states. Meanwhile, the electoral college is scheduled to be certified on Dec. 14. That’s 84 days from now. 

What if Biden wins? What if Democrats take the Senate? And consider Arizona, where Democrat Mark Kelly will almost certainly crush Republican Martha McSally, who was appointed to finish the term of the late Sen. John McCain. Kelly could be sworn in as early as Nov. 30, according to Arizona election experts—and vote down Trump’s pick.  

When conservative Justice Antonin Scalia died in February 2016, Barack Obama was a lame-duck president. Remember what happened next? McConnell said the vacancy should be filled by the next president. So he sat on the nomination of Obama’s nominee, Merrick Garland, and the seat wound up getting filled by Gorsuch. McConnell bet big—and won big. 

But unlike Obama, Trump is not a lame duck. He could win again. That’s the difference, Republicans argue. And they’re right. But if he loses to Joe Biden, what becomes of their argument then? 

Here’s what becomes of it: Nothing.

McConnell has already said he’s all in on pushing a nominee through. As for Graham, after saying in 2016 that he’d oppose a Republican president trying to fill a vacancy in the last year of the first term, he reneged on his words on Saturday. It may very well be that in a city where men of principle are few and far between, that Graham is the lowest of them all. 

These are men—Trump, McConnell, Graham—who don’t give a hoot what you think about any of this. It’s all about the raw exercise of power. Nothing more, nothing less. They intend to exercise it now. But they’d better hurry. 

Ruth Bader Ginsburg played a pivotal role in the women’s-rights era—and that was before she joined the Supreme Court

Amy Coney Barrett emerges as Trump’s front-runner to fill Ruth Bader Ginsburg’s Supreme Court seat

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