Anyone confidently predicting one way or another whether Senate Majority Leader Mitch McConnell can seat a new justice on the Supreme Court is blustering. Here is the only thing that’s certain: The coming fight will not be resolved by principle—no matter how senators talk or what principles they profess. It will be resolved by legislative gamesmanship, voting strength, and power politics.
Four major questions will determine the outcome of this struggle, set off by the death of Justice Ruth Bader Ginsburg only six weeks before Americans finish voting for both president and control of the Senate, and only four months before a new Congress gets sworn in.
The first is whether McConnell actually has the votes. Right now, there are 53 Republicans in the Senate, and recent statements from senators suggest that enough of them support holding a vote on the nominee put forward by President Trump this year for the process to move forward.
Only two GOP senators are opposed to forcing someone through before the next president takes office. Susan Collins, facing a tough electoral environment in Maine following her vote to confirm Brett Kavanaugh, announced Saturday that “the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.” Senator Lisa Murkowski of Alaska, who voted against Kavanaugh, coincidentally declared hours before Ginsburg’s death was announced, “I would not vote to confirm a Supreme Court nominee.” She reiterated that position following Ginsburg’s death: “For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election. Sadly, what was then a hypothetical is now our reality, but my position has not changed."
Other Republican senators, however, are backing McConnell’s aggressive stance. These include Martha McSally of Arizona, Steve Daines of Montana, Thom Tillis of North Carolina, and Cory Gardner of Colorado.The biggest blow for Democrats came this morning from Mitt Romney of Utah, who declared earlier that “I intend to follow the Constitution and precedent in considering the president’s nominee. If the nominee reaches the Senate floor, I intend to vote based on their qualifications.”
So while McConnell entered the game with a thin margin, he’s been successful at winning with thin margins before, including during last winter’s impeachment trial and the Kavanaugh confirmation—and the numbers have clearly broken in his favor. To create a majority, Minority Leader Chuck Schumer would need to make sure Collins and Murkowski are solid, and he would need two more Republicans to flip positions. That’s a tall order.
But the math may get worse for McConnell and better for Schumer after the votes are counted in November—if the Democrats can stall things that long. McSally is running considerably behind the Democratic challenger Mark Kelly, and because Arizona’s race is a a special election to fill the seat of the late John McCain, he would take office promptly were he to prevail—not when the new Congress convenes in January 2021. Although finalizing that election’s results and seating Kelly could take time, his would be a potential additional vote against a nominee.
More generally, if Democrats were to pick up Senate seats—as seems likely—or even take control of the chamber, particularly if Joe Biden were also to defeat Trump, the optics of confirming a nominee during a lame-duck session of Congress would get particularly ugly for McConnell. He would, after all, be trying to ram through a defeated president’s nominee with a razor-thin Senate majority that might be about to diminish further, or disappear entirely. And he would be doing so by way of allowing that defeated president and the defeated party in the Senate to seize control of the Supreme Court in the face of apparent voter preference for the other side.
This possible erosion of McConnell’s position raises the second key question, which is one of timing: Does McConnell push for a confirmation vote before the election, or does he wait until a lame-duck session?
This question is also tricky. The fact that McConnell’s position will likely be weaker with respect to pure numbers, at least somewhat, when the votes are counted creates a temptation to act quickly and get the confirmation done before the election.
But that will be hard. The election is only 42 days away, and, while plans could change to accommodate the process, Congress is not scheduled to be in session for more than 11 of them.
Confirming a Supreme Court justice does take time. It requires hearings. There has to be floor debate. And Democrats will be doing everything they can to stall and slow things down.
Remember also that all of those vulnerable incumbents whose seats McConnell wants to preserve need to go home and fight for their seats at precisely the time a quick vote will require them to be in Washington. Even if they support confirming the president’s nominee while reversing the positions that many of them took four years ago, when McConnell blocked President Barack Obama’s nomination of Merrick Garland, remaining in Washington keeps them off the campaign trail.
The result is a complicated little puzzle for McConnell: His position is stronger if he acts quickly, but he may not have the time to do so, and Democrats will certainly attempt to slow things down and force the matter into the lame duck, where their hand may well be stronger.
This raises the third key question: How much delaying power do Democrats have, and how much of it will they be willing to use?
The filibuster for Supreme Court nominations is gone, so the Democrats cannot stop the nomination without finding four Republican senators willing to vote against the nominee, but delaying tactics are available to them. Some of these tactics have been only theoretical in the past, because they involve disabling the Senate institutionally, so in the normal course of business, the costs of using them are just too high.
That could be the case this time around too, especially if the nomination slides to the lame-duck session. There could be competing legislative items that Democrats are not willing to cast aside by grinding the institution to a halt. Most significant, current plans to fund federal government operations involve a short-term spending measure that would run through December 11. If Democrats attempted to halt all Senate action over a Supreme Court pick, a bill keeping the government open would also be a likely victim. Additional legislation to address the COVID-19 crisis has languished as well, meaning that it, too, might well remain unfinished after the election.
Speaker of the House Nancy Pelosi has indicated that, at this point, she is not interested in jeopardizing government funding in favor of Supreme Court obstruction. The primary obstacle to legislative progress on addressing the coronavirus, meanwhile, has been divisions within the GOP over whether action is needed, so moving forward with such a bill may be difficult regardless.
But even in the presence of these high-value agenda items, Democrats may face demands from their voters to use every tool at their disposal to push back against McConnell. What’s more, knowing that they would be immediately disabling the Senate for only a discrete period of time, until the new Congress comes in, their calculation may be different than it has been in the past.
What are the available tactics? The Senate operates on the presumption that a quorum—51 members—is present, and suggesting the absence of a quorum triggers a roll-call vote to see who is present. Serial quorum calls can take up a lot of time.
Much of the Senate operates, moreover, by what’s called unanimous consent— the absence of any objection to doing things in the manner proposed. If Democrats simply make a practice of refusing unanimous consent on even routine matters, thus forcing debate and votes on all sorts of things that normally proceed without objection, that could further make processing the nomination resemble pouring cold molasses.
There are also options for delaying committee action. The Judiciary Committee’s rules, for example, require at least two members of the minority to be present for the committee to transact business, and they allow any member to request that a nomination be held over for action for a week. In addition, if the Judiciary Committee were to fail to report out a nomination, senators could discharge the panel of its responsibility, but a key motion required as part of that process can be filibustered.
A number of commentators have even floated the idea of the House impeaching a Trump official, in an effort to force the Senate to receive articles of impeachment and conduct a trial.
A sufficiently determined Senate majority could, however, likely take its own retaliatory steps to get around some of these forms of Democratic obstruction. In general, if a simple majority of senators is willing to vote in favor of reinterpreting the rules, stopping it is difficult. There are other possible GOP responses, too. In August 2019, for example, Judiciary Committee Chairman Lindsey Graham suspended several of the panel’s rules to take action on an immigration bill. Generally, if Democrats attempt to prevent a nomination from being reported by the Judiciary Committee, Republicans can alter Senate precedents and protect from a filibuster the necessary motion to bring it to the floor. And while the current Senate rules governing impeachment suggest that the Senate would have to act if the House sent over articles, it could likely dispense with them by a simple majority vote—if enough Republicans were willing to do so. The mechanics of the Senate’s existing rules also make the use of tactics such as repeated quorum calls more difficult once cloture on a nomination has been invoked—which, again, requires only 51 votes.
The final major question is whether Democrats can offer any credible policy deterrence for Republicans going forward with a confirmation. A number of Democrats have stated that if Republicans force through a nominee before the inauguration, they will feel compelled to respond, should they take the chamber, by increasing the number of seats on the Supreme Court. This is an idle threat when uttered by individual senators.
It ceases to be an idle threat the moment 51 senators, sitting or incoming, have their names behind it and make clear that they are prepared to move on the matter immediately when the new Congress convenes. To do this, admittedly, they would likely have to be prepared to blow up the legislative filibuster—something some Democratic senators and many Democratic activists want to do anyway.
The idea of threatening a policy-based retaliation to create a deterrent will become plausible only if Democrats prevail electorally and can then put on a united front in the lame-duck period. To be effective, the strategy would need credibly to promise something sufficiently undesirable to Republicans that McConnell backs down—or, failing that, that a few additional senators jump ship, costing him the majority he needs to get past the finish line. Given that calls from some Democrats to abolish the filibuster for major structural reforms were rising before Ginsburg’s death, and have escalated since, Republicans are likely to be skeptical of any Democratic commitment to refrain from doing so, even if Republicans stay their hand.
These variables will, in all likelihood, not operate independently of one another. McConnell is more likely to push for a quick confirmation vote if he’s confident of Republican votes. Democrats will be more assertive about using delaying tactics aggressively if Republican votes are soft or perceived to be uncertain—and if Democrats are confident of major electoral gains that will strengthen their hand.
Ginsburg’s seat will not be filled necessarily by the party that makes the better argument. Control of her seat, rather, will go to the party that best deploys the tools at its disposal in the fluid environment of an election, a ticking clock, and a possible shift of power.