If Trump wins reelection and the GOP keeps the Senate, the math is very simple: Game over.
In every other scenario, it’s a lot more complicated. To grapple with this, let’s divide the coming days and weeks into three discrete periods: (Period 1) The 45 days before the election, (Period 2) the 60 days from the election to January 3 when a new Senate is seated, and (Period 3) after a new president takes office.
In Period 1, the GOP has 53 Senate votes, plus a tiebreaker, if needed. That means McConnell can’t confirm Trump’s nominee if 4 GOP senators balk. This number may shrink by 1 in Period 2, and that single vote could be crucial, which puts him under some pressure to get a nominee confirmed before Period 2 starts. But that may be a bridge too far. And he may prefer to use confirmation to leverage Republican turnout in the election, because some of those voters might not bother to vote if the nominee is confirmed before the election.
In Period 2, the “lame duck” session between the election and new administration and Congress, the GOP most likely has 52 Senate votes, plus a tiebreaker. If so, they can’t confirm a nominee if 3 GOP senators balk. This is because the Senate election in Arizona is a special election to fill the remainder of Sen. John McCain’s term through January 2, 2023. The GOP incumbent, McSally, ran in 2018 for a Senate seat vacated by retiring Sen. Jeff Flake and lost, then on McCain’s death was appointed to fill his seat by the GOP governor; it looks like she can’t get elected to that seat either, because she’s trailing in polls. If she loses, that changes the composition of the Senate from 53-47 to 52-48. If Kelly wins, Republicans probably will try to delay seating him as long as possible, extending Period 1 a bit longer. But they may not be able to extend it long enough. It’s a safe bet that both Republicans and Democrats are figuring McConnell will have 1 less vote for confirmation in Period 2.
If no one has been confirmed by Period 3, and Biden wins, he will choose Ginsburg’s successor. If Democrats have taken over Senate control on January 3, no problem. If they haven’t, McConnell would be hard-pressed to keep the seat vacant for four years, although he might try to. He’s pure Machiavellian. But Romney likely would confirm any reasonable Biden nominee, so McConnell probably figures the GOP can’t lose more than 1 seat besides McSally’s in November for him to be able to block a Biden nominee.
The Arizona special election obviously looms large in this calculus, because McConnell can’t count on Romney, and without McSally’s vote, that margin of 4 becomes 2, and Murkowski (R-AK) has already said the next president should pick the nominee, so if she keeps her word, that number is 1, and if Collins of Maine balks at confirming someone likely to overturn Roe v. Wade, which she’s not in favor of, that number becomes 0, and it then takes only 1 more defection to defeat Trump’s nominee.
Like I said, the math is complicated. But the math is there. The loss of Ginsburg’s seat to an anti-abortion rightwinger isn’t a slam-dunk. Trump and McConnell are already teaming up to fill that seat as quickly as possible, but this could come apart on them. Then again, they may pull it off.
That brings us to retaliation. Writing in Mother Jones, David Corn says, “The win-over-reasonable-Republicans-with-reason strategy is weak sauce.” In other words, he expects all the Republicans who promised not to fill a Supreme Court vacancy in an election year (see list here) to turn out to be two-faced hypocritical liars, which is not an unreasonable expectation when dealing with Republicans. He continues,
“That leaves the Democrats with one other choice: total political warfare. The Senate’s Democratic leader, Chuck Schumer—with the backing of Joe Biden and Nancy Pelosi—needs to threaten massive retaliation. Should McConnell try to ram a Trump nominee through, Schumer ought to vow that the Democrats, if they win back the Senate and Biden is elected president, will demolish the filibuster, which will allow the Senate to proceed to make Washington, DC, a state (two more senators, who are likely to be Democrats!) and that they will move to add two or four more seats to the Supreme Court. (There is nothing in the Constitution that limits the court’s size to the current nine justices.) In other words: They will implement a Republican nightmare (which, as it happens, can be justified on arguments of equity and fairness).”
He justifies this in part by arguing,
“Ginsburg was an uplifting force in the ongoing American experiment. She was a feminist pioneer. She was an inspiring champion of equality, fairness, and perseverance. She wrote eloquent opinions that advanced and expanded progressive values and that made the United States a more perfect union. She penned blistering dissents that kept alive those values, even when they experienced setbacks. Her memory deserves more than passionate remembrances and praiseful eulogies. It warrants a fight. And perhaps a fight like one never seen before. One that will be damn notorious.”
Read his article here. But it really needs no justification. Republicans have already declared and waged political warfare. This would be nothing more than self-defense.
Return to The-Ave.US Home Page
The current polling cannot possible reflect any changes RBG’s death brings.
The Republicans should have the political will to vote on Trump’s nominee and make that nominee the next justice on the Supreme Court. Since Democrats have voted in favor of many of Trumps 250 judges if Trump puts forward a competent conservative judge there should be a few or many Democratic votes. This is not the same situation as with Garland. Garland was nominated by a lame duck President in his last year in office with the opposing party in power. It is not at all unusual for such nominees not to make it to the Supreme Court unless the President takes hat in hand and goes to the Senate majority leader and asks him or her who would be acceptable. Obama did not want to do that, nor use the other levers of his office to get a vote on his nominee. Or force votes on a series of nominees. If he has maybe the Democratic nominee for President might have won.
If the Republicans are unable to act on the Presidents pick frankly they deserve to loose control of the Senate.
This does throw Joe Biden’s strategy off as now it becomes much more difficult to get Republicans to vote for him and Democrats running for the House and Senate. I have doubts that would happen anyway as stalwart party members don’t vote for candidates from other parties unless are really pissed off. The dance that Kuisich does to show his support of Biden in light of RGB’s death will be fun to watch. he might have to announce he is a Democrat now. How can he not support Mitch and Donald now that they are in reach of one of the holy grails of the Republican party that has been sought for decades. Will he admit that this grail has crossed the boundary and should be no more. Will he go into quarantine and make me wait for the dance after the election, which frankly will say it all if Kuisich cannot be found. Your convention folks found him so they will help the investigative reporter find him, won’t they?
The only question is whether this will be some kind of record setting nomination to vote. It will not be that record is three days. Before the modern age most nominations were dealt with by the Senate in 10 days to two weeks, maybe three. Nominees who did not have support went away quickly and a new pick was made by the President or that nominee got a quick vote , bye bye by the Senate. Well not literally since hardly ever was a nominee even in the Senate chambers or in front of any committee.
I am sure McConnell can use the Pelosi rules of power and high management to get the Presidents nominee sworn in by November 1st. I know there are these Republican complaints that the rules are not very Democratic, but the Democrats claim they are marvelous and effective. Maybe not a good fit for the Senate the worlds most deliberative body, but hey how often do you get a sot at the holy grail.
Machivalli also has advice when it comes to the Mother Earth to the Republican leadership. It amounts to just do it, the people will respect and support you. Even vote for you and our candidates. And if they don’t most of their threats will not pan out, and they do have to continue living with you as you with them. have you kept enough of your enemies closer to you than your friends?
PS and if the Democrats make a lot of noise and you ram it through it makes them look weak, and Americans love a winner.
Exactly! Weakness is a Democratic specialty. Nuclear deterrence works because everyone believes we’ll push the button. If Democrats don’t push the button this time, they’ll be pushed around for the next 40 years.