And what’s it going to mean for the Presidential election?
The most likely path we see is for Trump to nominate someone before Election Day to replace Justice Ruth Bader Ginsburg, who died Friday, but the Senate not to vote on that nomination until after. That is, during the session that will take place between Election Day in November and Inauguration Day in January. That way people will be asked to vote not just for Trump, but also for his Supreme Court nominee.
That course of action is not without significant political risk for Republicans. But also for Democrats. And probably more for Democrats.
Why? Because it gives Republicans more of a reason to appeal to people out there to vote for President Trump. Since they’ll now be asked to vote for his Supreme Court nominee at the same time. Which folds very well into one of the central Republican messages of late: vote for Trump in spite of who he is, not because of who he is. Now, wavering voters might actually be presented with a real reason to do that.
Let’s say Trump nominates someone as soon this week, which he probably will. And instead of holding off a while, Republicans in the Senate slam through a hearing almost immediately, and muster the votes to clear that candidate before November. Then, voters actually have less incentive to choose Trump, because it’s already a done deal. And one of the main reasons Trump always asks people to vote for him—especially evangelicals—is he promises another super-Conservative Supreme Court justice when the time comes. And the time has come.
Sure, doing a quick nomination and then holding off on confirmation, could possibly benefit Democrats, because it gives people more incentive to vote for them too. Or at least against Trump and his choice. But really, Trump is bad enough news on his own. So Democrats probably need less of another reason to vote against, than Republicans or Independents need a reason to vote for Trump.
Also, Democrats would definitely have more leverage after Election Day if Joe Biden wins and if they flip the Senate. Even though Trump will still be President and the Senate will still be under Republican control for a few months after that.
But those are some big “ifs”.
Still, if that happens, Democrats would be hugely better positioned politically than they are now, because then they can make threats about things they plausibly could actually do to even the score if Republicans won’t compromise.
Those things, including the one that’s probably being most talked about: threatening to add a couple more justices to the court, are hardly slam dunks even if Democrats win big, because they would involve an intricate, multi-step legislative process.
But in the scenario we just described, talking about doing things like that wouldn’t just be empty threats, as they are now.
But these days, when Senate Minority Leader Chuck Schumer (D) NY, says things like:
“Nothing is off the table.”
He might as well shut his mouth and step aside. Because he’s not playing with enough chips to be consequential at this point. And while yeah it’s his job to make a fuss, he’s also playing into the hands of Republicans. Who can now try to turn public sentiment against Democrats by saying they are power hungry cheaters salivating at the prospect of changing all the rules to satisfy their unbridled and unjust lust for power. When it’s Republicans who are actually the masters of that.
As you might’ve noticed, we have no love lost for Senator Schumer, and think it’s high time he’s replaced. And in fact, he bears a lot of responsibility for the predicament we’re in right now. Because he was in charge of the Democrats’ Policy Committee during the utterly disastrous for Democrats 2014 Midterm Elections, which is when Republicans retook the Senate, netting a whopping 9 seats. That committee describes itself as the party’s main “arm” for enhancing its ability to formulate, communicate, and enhance its agenda. Now you tell us if Schumer’s was a job well done?
Sorry for the digression. Let’s get back on track.
Why would Republicans take the risk that Democrats might win and gain a lot more clout after November, when probably they could get “their” new justice installed fairly soon?
That’s the key question. And it’s a lot bigger question than that.
Let’s step back for a second and remember that it’s Senate Majority Leader Mitch McConnell who wields virtually all the power in this process. Trump’s role in it is actually quite limited.
Sure, Trump will get to name the next nominee. And he already says it’ll be a woman. Which he thinks will help him get more women to vote for him. Which maybe he will. But once he chooses, he’s pretty much on the sidelines. Sure, he’ll do continuous commentary by Twitter and at rallies. But it’ll be McConnell’s ballgame to manage.
And if you haven’t noticed, by far McConnell’s greatest objective and accomplishment during the Trump years has been loading up federal courts with young, ultra-Conservative, and coincidentally at least, mostly White judges. More White than under any President since Reagan. And all those appointments are for life.
Just has McConnell worked tirelessly to block new judges during the final years of the Obama presidency. When he refused to let the Senate even consider Obama’s last Supreme Court nominee, he created a furor, and increased the partisan rift. But that move really wasn’t too much of a risk in and of itself.
Because had Hillary Clinton won, the Democratic nominee would’ve likely gone through, so no “worse” for McConnell than had he let it happen earlier. Hold off and should the “long shot” pay off, he’d win big. It did. He did.
This time, there is a bit more of a risk for him, because if Biden wins there is that real pressure Democrats will be able to bring to bear. They may not succeed, but it’ll be more than they’ve got now. Of course if Trump wins, it’ll be all Trump all the time. So if McConnell sees that as a risk worth taking, it’s certainly playing into his thinking too.
But if transforming the federal courts for generations, pretty much ensuring liberal or progressive causes and issues are tamped down for decades, is McConnell’s true life work, mightn’t he want to really quickly and definitively sew that up by getting a new Supreme Court Justice in right away? Even if it might mean impacting Trump’s re-election chances? Or is he willing to wait for a potentially bigger payoff, but one that requires Trump winning?
One thing to keep in mind when trying to pre-emptively answer these questions is despite what people like Republican Senator Ted Cruz are trying to get you to believe, the Supreme Court currently has a 5-3 Conservative bias. 5 of the Justices were appointed by Republican Presidents, 3 by Democrats. So one more very Conservative justice would pretty much lock that bias in for every ruling for years and years and years. Even if Chief Justice John Roberts “strays” and votes with the more liberal justices, as he’s done occasionally. Though not on issues related to voting. So why not totally just seal that deal up right now?
We’ll soon see what McConnell decides to do. Really, he’s the person to watch right now.
When to hold hearings—which is also completely under McConnell’s control—is another interesting question. Is it better for voters to head to the polls with fresh images of furious Democrats in a brutal confirmation hearing, which might also take valuable time away from campaigning if they’re up for re-election? Or wait til after for hearings too. A quick scan of the Senate Judiciary Committee shows 3 Democrats up for re-election currently on that committee, including Democratic Vice-Presidential candidate Senator Kamala Harris (D) CA. And 5 Republicans, 3 of whom are considered to be in competitive races, including Committee Chair Senator Lindsey Graham (R) SC. (You might know him as Trump’s golfing buddy.) Though it might actually be helpful for Graham to lead some crucial hearings now so he looks large and in charge. Especially since he said less than two years ago of a potential Supreme Court vacancy—and repeated similar stuff a bunch of times as if for emphasis:
“If an opening comes in the last year of President Trump’s term…we’ll wait til the next election.”
Here he is very resolutely saying it:
But now he’s come up with all kinds of excuses for why it’s OK for him not to keep his solemn word.