Can Trump and McConnell Push Through a Successor to Ruth Bader Ginsburg?

By Jeffrey Toobin, The New Yorker

19 September 20

n Washington, grief yields quickly to calculation. The announcement of the passing of Ruth Bader Ginsburg, the Supreme Court Justice and epic figure in American legal history, came in the early evening on Friday. This led to two simple questions that are now preoccupying the Capitol: Can President Trump win confirmation for Ginsburg’s successor before the end of his term? If so, who will it be?

The broad outlines of the situation are already clear. Mitch McConnell, the Senate Majority Leader, announced within hours of Ginsburg’s death that he will make sure that a Trump nominee gets a vote in the Senate this year. The hypocrisy of his position is breathtaking. Antonin Scalia died on February 13, 2016, nine months before that year’s Presidential election. On that day, McConnell said that he would not allow a hearing or a vote on a nominee from President Barack Obama, because the next President should be allowed to make the choice. McConnell and his Republican colleagues were as good as his word, and Merrick Garland, Obama’s nominee, never received a hearing or a vote. Now, of course, the Presidential election is less than two months away, and McConnell has nevertheless vowed to jam through Trump’s nominee.

Still, McConnell faces a genuine time crunch. Ginsburg died forty-five days before Election Day. It took eighty-nine days for Brett Kavanaugh to be confirmed after he was nominated. (It took sixty-five days for Neil Gorsuch to be confirmed, eighty-seven for Elena Kagan, and sixty-six for Sonia Sotomayor.) Yet Democrats have few procedural tools at their disposal to delay the process. Specifically, under the Senate’s rules, the opposition party has the right to delay a vote in the Judiciary Committee for a week; and it has the right to insist on at least thirty hours of debate on the Senate floor before cloture—that is, a final move to a vote. So it does seem procedurally possible for McConnell to push through a nominee, either before Election Day or during the lame-duck period.

The real question is more political than procedural. McConnell has proved to be a cunning leader of the Senate, but he is not an absolute ruler. Under McConnell, the Republicans changed the Senate rules to abolish the filibuster for Supreme Court nominations, so he only needs a simple majority to confirm a Justice. (He also has the tie-breaking vote of Vice-President Mike Pence.) There are fifty-three Republicans in the current Senate, and they all have their own calculations to make on the issue. Several senators, including Lisa Murkowski and Susan Collins, as well as Lindsey Graham and Chuck Grassley, have expressed misgivings about or outright opposition to pushing through a confirmation in an election year. Others, such as Mitt Romney and Lamar Alexander, might be expected to feel similarly. But those were theoretical concerns about theoretical nominations. Soon the President will present them with a flesh-and-blood choice for the Ginsburg seat—and Senate Republicans have, almost without exception, fallen into line when Trump (and McConnell) has asked them to do so. Given McConnell’s singular obsession with the courts (and especially the Supreme Court), he can be expected to use every tool at his disposal to close this deal, even if the Republicans lose control of the Senate on November 3rd. (The margin might be even slimmer at that point, if, as expected, the Democrat Mark Kelly defeats the Republican Martha McSally in Arizona. Under Arizona state law, Kelly could take office as early as November.)

In sum, then, it seems that Trump and McConnell could find their way to a vote on a nominee this year. It’s difficult, but not impossible. But who would it be? The leading candidate is clearly Amy Coney Barrett, whom Trump interviewed for the nomination that went to Kavanaugh. She is a dream candidate for the right wing of the Republican Party. She’s just forty-eight years old, a recently confirmed judge on the Seventh Circuit, a former professor at Notre Dame Law School—and believes that life starts at conception and has said that Court precedent is not sacrosanct. And she has a compelling personal story: she and her husband have seven children, five biological children and two who are adopted from Haiti. Trump has also publicly updated his Supreme Court shortlist throughout his Presidency. Other realistic candidates include Barbara Lagoa, who was the first Cuban-American to serve on the Florida Supreme Court, and now is on the Eleventh Circuit. Amul Thapar, a McConnell favorite who is now on the Sixth Circuit, was also interviewed for the Kavanaugh seat and may get another look this time. They all have the formal qualifications that are customary for Supreme Court Justices. The question is whether the Republican Senate will violate its supposed principles from 2016 to push one of them through.

If the answer is yes—if Trump fills the Ginsburg seat—the next question will be how the Democrats respond. If the Democrats fail to retake the majority in the Senate in November, their options are few except to grin and bear it. But, if they win the majority and Joe Biden wins the Presidency, there are four major possibilities for retribution—which all happen to be good policy as well. The first is the abolition of the filibuster, which should have happened decades ago. Even in the minority, McConnell will do everything he can to thwart Biden, and the filibuster will be the tool. This antidemocratic relic should be retired once and for all. Second, statehood for the District of Columbia and Puerto Rico, with two senators apiece, would be another appropriate rejoinder. Third, Congress should pass a law expanding the number of lower-court federal judges; that number has not increased since Jimmy Carter was President. Finally, the greatest and most appropriate form of retribution involves the Supreme Court itself. The number of Justices is not fixed in the Constitution but, rather, established by statute. If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court. To do so would be to play hardball in a way that is foreign to the current Senate Democrats. But maybe, in light of all that’s happened, that’s a game they should learn to play.