Let’s get the rules out of the way first: The Senate can fill the late Ruth Bader Ginsburg’s seat on the Supreme Court as soon as President Donald Trump nominates someone.
There’s nothing in the Constitution that prevents a Supreme Court vacancy from being filled, regardless of how close to an election it opens up.
Precedent in such a situation is different. Until Senate Majority Leader Mitch McConnell, R-Ky., blocked President Barack Obama’s 2016 pick, nine months before the election, it hadn’t been done very often, says Russell Wheeler, an expert on Supreme Court history with the Brookings Institution.
McConnell was forging his own path, for obvious political reasons. It was a gamble that worked. President Trump won the election, Republicans kept control of the Senate, and they have since filled two Supreme Court vacancies.
McConnell has every intention of taking advantage of a vacant Supreme Court seat again, with his party in power. He issued a statement Friday night saying in part:
“Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
McConnell can’t say he is flip-flopping on his 2016 position about election-year court vacancies because doing so benefits him politically now. So he has offered some logic that does little disguise its political convenience: This time is different because the Senate and the presidency are held by the same party, which wasn’t the case when there was a vacancy in the last year of Obama’s presidency.
“Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” McConnell said in his Friday statement.
That is true, but not for the reasons McConnell suggests. As I’ve written before, there haven’t been many cross-party Supreme Court nominations in an election year because there haven’t been that many cross-party Supreme Court vacancies in an election year. It just doesn’t happen very often, because Supreme Court justices typically don’t leave the bench in an election year if they can help it.
Even if his argument is somewhat tortured, McConnell has been signaling his intention for a while now to move on an election-year vacancy. “Oh, we’d fill it,” McConnell said in May 2019 of an election year vacancy, offering up the same opposite-party logic.
Procedurally, it’s easier than ever for McConnell to do this. A few years back, the Republican-controlled Senate changed the rules so that it only takes a simple, 51-vote majority to approve a Supreme Court justice. (Both parties had a hand in creating the conditions for that to happen.) Now, there’s no 60-vote filibuster Democrats can use to stop the majority.
Republicans have a slim majority with 53 members. So McConnell can afford very few defections, and already there are questions about whether one, Sen. Lisa Murkowski, R-Alaska, might vote for a nominee in an election year. She told Alaska Public Media earlier Friday she would wait until after inauguration of the next president, be it Trump or Democrat Joe Biden, to uphold the argument she and Senate Republicans made so forcefully in 2016 that the people should get to decide who fills this spot.
What will the handful of other moderate Senate Republicans say about this? It’s hard to see any Democrats voting for this vacancy, so defections could cause McConnell trouble.
There are also some politics at play that McConnell must deftly navigate. At the same time he is preparing for a Supreme Court nomination battle, he is fighting to keep Republicans' Senate majority.
He has vulnerable members at risk of losing their seats in Colorado, Arizona, Maine and North Carolina and maybe even Iowa, Montana, Georgia, South Carolina. Those are a lot of states where Republicans have to play defense, and even before Ginsburg’s death, it was looking tight for Republicans. How will those vulnerable members feel about casting such a controversial, blatantly political vote when their jobs are at stake?
It’s a lot to consider. But McConnell has the chance to thrust the Supreme Court in a more conservative direction for perhaps generations. It’s a remarkable legacy for McConnell.