The Race To Replace

Where does Mitch McConnell go from here? Jane Meyer and Norm Ornstein figure the ever-pragmatic McConnell will hedge his bets on replacing the late Justice Ginsberg before the election.

As I reported in April, behind closed doors McConnell has been raising money from big conservative donors for months by promising that no matter how close it might be to the election, he would install Trump’s Supreme Court pick. As a former Trump White House official told me, “McConnell’s been telling our donors that when R.B.G. meets her reward, even if it’s October, we’re getting our judge. He’s saying it’s our October surprise.”

But now that the moment is here, the calculation isn’t quite so simple. On Friday night, McConnell released a statement vowing that a Trump nominee “will receive a vote on the floor of the United States Senate.” While McConnell’s obstruction of Obama’s nominee, Merrick Garland, made him the bane of liberals, he has regarded it with pride as the single “most important decision I’ve made in my political career.” He and many others believe it handed Trump his victory by motivating the politically powerful evangelical bloc to vote for Trump, despite their doubts about him, because he promised to fill the Court vacancy with a social conservative. It’s entirely possible that the same scenario will play out again this November, with Trump and McConnell offering another enticing gift to evangelicals.

But McConnell is also what Ornstein calls “a ruthless pragmatist,” whose No. 1 goal has always been to remain Majority Leader of the Senate. He’s made the conservative makeover of the federal court system his pet project, but if he faces a choice between another right-wing Justice and losing his control of the Senate, no one who knows him well thinks he’d hesitate for a moment to do whatever is necessary to stay in power. In fact, back in the summer of 2016, when it looked like Trump would lose to Hillary Clinton, far from being distressed at his party’s dim prospects, McConnell was savoring the probability of being the single most powerful Republican in the country, according to a confidant who spoke with him then.

The problem for McConnell now is that it may be impossible for him to both confirm a new Justice and hold onto his personal power as Majority Leader. A power grab for the Court that is too brutish may provoke so much outrage among Democrats and independents that it could undermine Republican Senate candidates in November. As he knows better than anyone, polls show that Republican hopes of holding the Senate are very much in doubt. If Joe Biden is elected, enabling a Democratic Vice-President to cast the deciding vote in the Senate, Democrats need only to pick up three seats to win a majority. And, at the moment, according to recent polls, Democratic challengers stand good chances against Republican incumbents in Maine, Arizona, and Colorado. Democrats also have shots at capturing seats in South Carolina and Iowa.

 

On the other hand, this is much bigger than McConnell and even Trump, and the GOP knows it.

Much as he has already done on the judicial front, conservatives need him to deliver once more. “This nomination is why Donald Trump was elected,” Sen. Ted Cruz, R-Tex., told Sean Hannity of Fox News on Friday evening. A graduate of Harvard Law School whose name was on a recent list of potential Trump nominees to the Supreme Court, Cruz urged Trump to nominate the justice next week and confirm him or her before the presidential election on Nov. 3.

That would make for the speediest nomination-to-confirmation process in American history. A 2018 analysis by the nonpartisan Congressional Research Service found that the first hearing for a Supreme Court nominee occurred 40 days after the formal nomination.

Obama nominated Garland with 237 days before the 2016 election. Now the 2020 presidential election is 45 days away, and in some states, people have already begun to vote. Trump will still have more than two months after Nov. 3 to govern, even if he loses, but that day’s results could complicate things if Biden is elected or the Senate flips to the Democrats. Either of those developments could rob Republicans of the mandate they believe they currently have.

Speculation about Ginsburg’s health has been rampant in conservative judicial circles for years, stoked by recent trips to the hospital for treatment related to her recurring cancer. Only last week, Trump released an expanded list of potential Supreme Court nominees in what seemed at the time like a ploy to stoke conservative enthusiasm and remind his supporters of why they voted for him in the first place. Now that list will serve as a road map for the weeks ahead.

Mark Meadows, the president’s chief of staff, is expected to lead the process. Though well-liked on Capitol Hill, Meadows, a former House member, doesn’t have experience dealing with the Senate confirmation process. Meadows’s negotiations with House Democrats over coronavirus relief measures do not suggest exceptional skill in either pressuring or persuading legislators, and both those attributes will figure into the fight over Ginsburg’s seat.

Joshua Geltzer, who clerked for Supreme Court Justice Stephen Breyer and is now a professor at Georgetown Law, believes that there might be just enough of a gap between McConnell and Trump for Democrats to exploit.

“As a pure political calculation, I think Senate Majority Leader McConnell and President Trump might actually be in different camps here,” Geltzer explained to Yahoo News. “McConnell might be inclined to rush a nominee through the Senate before Election Day, despite the obvious hypocrisy with how he handled the Garland nomination in 2016, because the court is a genuine high priority for him.”

 

So which McConnell shows up for this fight, the one that will cautiously move in order to preserve his Senate majority, or the ruthless power broker who knows he can end 50 years of progress in less than 50 days?

We're about to find out.