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The Confirmation Two-Step

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Senate Republicans, led by their dance-master, Majority Leader Mitch McConnell, began dancing just hours after the death of Supreme Court Justice Ruth Bader Ginsburg was announced. It certainly would be fair to ask: What’s the rush?

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Replacement For Justice Ruth Bader Ginsburg

Why is it so important to have a replacement for Justice Ruth Bader Ginsburg confirmed before Election Day, or, failing that, then before the new Congress convenes on January 3rd?

A large majority of Americans – and even half of Republicans -- believe that Justice Ginsburg’s successor should be named by whoever wins the presidential election on November 3rd. Their reasoning is very clear: Let the American electorate have a voice.

In a democracy, don’t our elected officials follow the will of the people? Wouldn’t that mean that if Joe Biden were elected president, then the selection of a new Justice should be put off until late January?

Indeed, that’s exactly what Senate Republicans have unanimously maintained until less than a week ago. In 2016, after Justice Antonin Scalia’s death, Senate Republicans all agreed that the new president who would be elected nine months later should be to one to nominate Scalia’s replacement.

But now, these same Senate Republicans maintain that they must vote on President Trump’s nominee less than two months before the presidential election. This may be the greatest mass flip-flop in American political history.

Trump's Announcement Of His Supreme Court Nominee

President Trump expects to announce his Supreme Court nominee on Friday or Saturday. Congress is scheduled to be in session for another eight or nine days before going on break until after Election Day. Will this be enough time to actually have a vote on this nominee?

While it is quite possible that Senator McConnell will be able to successfully shepherd the nomination to a vote, he will have to overcome two major obstacles.

Obviously, Senate Democrats will employ every legislative stalling tactic in the book to slow down the confirmation process. But perhaps more importantly, the Senate’s legislative dance card is already quite full. It will need to pass a multi-trillion economic stimulus bill, not to mention keeping the government operating through December 11th by passing a continuing resolution already passed by the House.

Although the passage of both measures would be much more helpful to the Republicans – and especially to President Trump – than to the Democrats, one or both might have to be sacrificed in order to have the time to secure a vote on Trump’s Supreme Court nominee. Will that sacrifice be worth it to virtually every Republican Senator?

The Impact Of The Delay Of The Economic Stimulus Bill

Delaying the economic stimulus bill will probably damage the president’s reelection prospects as tens of millions of Americans will not have enough money to pay their rent or buy food or medicine. Millions of others would miss mortgage and car payments. States and localities would be forced to lay off hundreds of thousands of essential workers.

Let us suppose that the Republicans do manage to force a vote. It would seem likely that the nominee would be confirmed. But at this point in time, it would be no sure thing.

The Republicans, with their 53-47 edge over the Democrats, could afford three defections, and with Vice President Mike Pence casting the tie-breaking vote, the nominee would squeak through.

Presumably Senators Susan Collins and Lisa Murkowski will vote against confirmation, given that they oppose holding a vote before Election Day. Senator Mitt Romney, who has not opposed a vote is something of a wild card, having voted to remove President Trump from office after he was impeached by the House. And who knows, among the Republican majority, whether there might even be another one or two profiles in courage?

I won’t speculate who else might vote against confirmation, whether out of principle, dislike for Trump, or perhaps because of some shortcomings of the nominee herself. But there is at least some chance that the nominee will not be confirmed before Election Day.

After Justice Ruth Bader: Senate's Vote On Trump’s Nominee

Let’s move on to the second step of our dance. If the Senate does not vote on Trump’s nominee before Election Day, it will get a second chance during a lame-duck session from just after Election Day to a week or so before Christmas.

By then, if Trump is the clear-cut winner, McConnell will move very quickly to get his nominee confirmed. Presumably, the Republicans will lose some Senate seats in the election, and very possibly control of the Senate. To further complicate things, Democrat Mark Kelly, who is strongly favored to unseat Senator Martha McSally in Arizona on November 3rd, may be able to take over her seat as early as November 30th, because he will have defeated her in a special election to fill out the rest of Senator John McCain’s term.

But if Joe Biden were the clear-cut winner, then McConnell will still move as quickly as possible to add one more Republican seat to the Supreme Court – an objective that is very close to his heart. The only problem is that he will have a much harder time holding some Republican Senators in line.

They have faithfully backed Trump, or at least remained silent, no matter how outrageously he has acted. Many did not do this out of love, but rather because of fear. The last thing they needed was to have the president “primary” them when they ran for re-election.

What If Trump Lost The Election?

But what if Trump lost the election? Well, then it would be a brand-new ballgame. Maybe Lindsey Graham, Rand Paul, Marco Rubio, and perhaps even Ted Cruz – all of whom traded ad homonym insults with Trump during the 2016 Republican primary -- would once again turn on him.

So after Election Day, if Trump loses, it is far less likely that McConnell will be able to round up enough votes to confirm whomever Trump nominates for Justice Ruth Bader Ginsberg’s seat on the Supreme Court. But wait! There’s still more!

On January 3rd, the new Congress will convene. If the Senate has not yet confirmed Trump’s nominee, this new Senate certainly will not. The Republicans currently hold a 53-47 seat majority. The new Senate may well have either a Democratic majority, or at least a 50-50 split. So on January 3rd, Trump’s nominee will be dead in the water.

In sum, the crucial period for Trump’s nominee will be the current Senate session. If the Senate goes on break before confirming, that nominee’s only chance will be if Trump is reelected.

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