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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

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By Paul Brandus

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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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