Senate Majority Leader Mitch McConnell, R-Ky., said he would schedule a vote to confirm Donald Trump’s nominee to succeed Justice Ruth Bader Ginsburg after her death Friday, giving the president an opportunity to cement a rightward tilt of the Supreme Court for a generation.
With the election less than two month away, McConnell said the Senate would act to fill the vacancy, even though he spent most of 2016 denying a confirmation hearing to President Barack Obama’s pick to fill a vacancy on the high court.
Americans gave Republicans a Senate majority “because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” McConnell said in a statement shortly after Ginsburg’s death was announced. “Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
There almost certainly would be 50 Republican senators who would be willing to fill the position as they would be under tremendous pressure in a tight election year from antiabortion groups and evangelicals to take what could be their last chance to overturn Roe v Wade.
With 53 Republicans, McConnell can afford to lose three senators and still confirm a pick with Vice President Mike Pence casting a tie-breaking vote.
They can do so because Senate Republicans in April 2017 ignited the “nuclear option” to change Senate rules to allow Supreme Court nominee Neil Gorsuch and future high-court nominees to be confirmed with a simple 51 majority vote, eliminating a 60-vote hurdle.
Justice Brett Kavanaugh, facing allegations of sexual assault from his teen years, was confirmed with 50 votes in 2018.
On Friday night, Democrats quickly demanded that any move to replace Ginsburg be left for the next president.
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” Senate Minority Leader Charles Schumer, D-N.Y., said in a tweet that his office said was an exact echo of a statement by McConnell in 2016 following the death of Justice Antonin Scalia
Days before she died, NPR reported, Ginsburg dictated a statement to her granddaughter saying, “My most fervent wish is that I will not be replaced until a new president is installed.”
In recent weeks, Trump has named more than 20 possible nominees in case he had the chance for another appointment. Among them is Seventh Circuit Appeals Judge Amy Coney Barrett, 48, of Indiana. Barrett, who grew up in New Orleans, was a University of Notre Dame law professor when Trump appointed her to the appeals court in 2018.
Trump was revisiting a tactic he used in 2016 to galvanize support among conservatives and evangelicals. “Apart from matters of war and peace, the nomination of a Supreme Court justice is the most important decision an American president can make,” Trump told reporters on Sept. 9.
McConnell’s move to block Obama from having a hearing on his nominee in 2016 — Merrick Garland — set the stage for Trump to install Gorsuch instead.
Replacing Ginsburg with a conservative who could overturn Roe v. Wade and the Affordable Care Act among other key issues and would substantially increase the pressure on Democrats to consider neutering the Senate’s filibuster rule and expanding the size of the Supreme Court in turn.
McConnell has already warned that some Democrats are eyeing ending the need for 60 votes to overcome a filibuster should they take over the Senate, potentially setting the stage for packing the court.
Democratic presidential nominee Joe Biden said at a debate last year that he was opposed to adding additional justices to the court if Democrats were to win the presidency.
“I would not get into court packing. We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all,” he said. But, if Republicans move to replace Ginsburg this year and Biden wins in November, he’d face strong pressure from the left to change that position
Senate Judiciary Chairman Lindsey Graham, R-S.C., issued a statement that was silent on the question of whether Ginsburg should be replaced before Election Day. He called her “a trailblazer who possessed tremendous passion for her causes.”
“While I had many differences with her on legal philosophy, I appreciate her service to our nation,” said Graham, who is up for reelection this fall in an increasingly tight race.