To use power, you must have it.
On the night of Justice Ruth Bader Ginsburg's death, Senate Majority Leader Mitch McConnell announced that a Trump nominee to replace Ginsburg would receive a vote on the floor of the Senate.
That announcement promised a use of power without hesitation or compunction, an abrupt reversal of the supposed rule that blocked an Obama nomination nine months before the 2016 election. This supposed rule would seem much better justified in 2020 than 2016. This time, the vacancy has occurred only 46 days before an election. This time, the party of the president making the nomination seems likely to lose, not win. This time, the Senate majority to approve the nomination may lose too.
But of course, the real rule in 2016 was "the good old rule ... the simple plan, that they should take who have the power, and they should keep who can." What McConnell did in 2016 was an assertion of brute power, and what he proposes in 2020 is another assertion of brute power. And so the question arises: Does McConnell in fact have the power he asserts?
The answer may be no, for four reasons.
Does McConnell really command a Senate majority?
The polls do not favor Susan Collins, Cory Gardner, or Thom Tillis—senators from Maine, Colorado, and North Carolina up for reelection this cycle. Yet these competitors may not be ready to attend their own funerals. They may regard voting against McConnell's Court grab as a heaven-sent chance to prove their independence from an unpopular president—and to thereby save their own seats.
Lisa Murkowski of Alaska has also made skeptical noises, and even Lindsey Graham of South Carolina may flinch. He faces an unexpectedly tough race this year, and he is extra-emphatically on the record vowing not to support a Supreme Court confirmation vote in the later part of a presidential year.
(Martha McSally of Arizona, however, is likely a safe vote for McConnell. The deadest of the Senate's dead ducks surely must be focused on retaining national Republican support for her post-Senate career. Mitt Romney of Utah is a more open question: His strong sense of fairness will push him against confirmation; his consistent support for conservative judges will pull him in favor.)
McConnell cannot afford more than three defections in the face of what will certainly be united Democratic opposition to any last-minute Trump nominee.
Does McConnell really have a nominee to advance?
Any last-minute Trump nominee will face a gantlet of opposition in the Senate, a firestorm of opposition in the country, and probably a lifetime of suspicion from the majority of the country.
Can McConnell and Trump find an appointee willing to risk all that for the chance—but not the guarantee—of a Supreme Court seat? Specifically, can they find a woman willing to do it? The optics of replacing Ginsburg with a man may be too ugly even for the Trump administration. And if they can find a woman, can they find a woman sufficiently moderate-seeming to provide cover to anxious senators? The task may prove harder than immediately assumed.
Will Trump balk?
Until now, judicial-nomination fights have mobilized Republicans and conservatives more than Democrats and liberals. The fight McConnell proposes may upset that pattern. Trump's hopes for reelection depend on suppressing votes and discouraging participation. The last thing he needs is a highly dramatic battle that could mobilize Democrats in states including Arizona and North Carolina—even Georgia and Texas.
The smart play for Trump is to postpone the nomination to reduce the risk of Democratic mobilization, and to warn Republicans of the risks should he lose. Trump’s people do not usually execute the smart play. They are often the victims of the hyper-ideological media they consume, which deceive them about what actually is the smart play. This time, though, they may just be desperate enough to break long-standing pattern and try something different.
Will the conservative legal establishment play ball?
The judicial status quo enormously favors conservatives. Even should Democrats win big in November, it will take many years for them to catch up to the huge Republican lead in judicial appointments. By then, who knows, the GOP may have retaken the Senate, and of course it may well find a way to hold on in 2020.
But a last-minute overreach by McConnell could seem so illegitimate to Democrats as to justify radical countermoves should they win in November: increasing the number of appellate judges and Supreme Court justices; conceivably even opening impeachment hearings against Justice Brett Kavanaugh.
McConnell may want the win badly enough to dismiss those risks. But many conservative-leaning lawyers in the country may be more cautious. And their voices will get a hearing in a contentious nomination fight—not only by the national media, but by some of the less Trump-y Republican senators. This could be enough to slow down a process that has no time to spare.
Mitch McConnell has gotten his way so often that it’s hard to imagine he might ever lose. But the political balance of power is shifting this fall, and for once, McConnell may be on the wrong side of a power dynamic.
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