If you thought the presidential election was already too hot and too nasty, brace yourself. You ain’t seen nothing yet.
The mourning for Ruth Bader Ginsburg had barely started when the first political shots were fired. At 7:51 pm, about 15 minutes after news broke of her death, Sen. Chuck Schumer tweeted his demand that “this vacancy should not be filled until we have a new president.”
So much for rest in peace.
There’s no surprise in Schumer’s position or his desire to get out in front of the issue, but neither carries much weight. The decision about whether to try to fill the court’s vacancy is up to Republicans.
The first key question is whether President Trump will want to nominate someone so close to the election, possibly setting the stage for the Court to be the deciding factor in whether he gets four more years. My guess is the answer is yes because he recently released a list of people he would consider for the next vacancy.
Besides, it’s not like Trump to shrink from a fight. This one would be an all-out war, so emotional and polarizing it would make his impeachment look like a skirmish.
But it will also be a hugely important fight and one worth having. No president is elected to avoid big issues because they are controversial and Trump especially was chosen to shake and rattle Washington.
Because this moment has all the ingredients for a decisive battle, I would be shocked — and disappointed — if Trump declines the opportunity to nominate a potential third justice during his term.
Any questions about where Senate Majority Leader Mitch McConnell stands were quickly answered. He has said repeatedly that he would confirm a new justice in a presidential election year as long as the president and the Senate majority were of the same party, and he reiterated that stance Friday night. A Trump nominee, he vowed, “will receive a vote on the floor of the United States Senate.”
McConnell is clearly ready to put all his chips on the table because he, too, is up for re-election.
One complicating factor is that he’s only got 53 votes, and one, Sen. Lisa Murkowski of Alaska, quickly said she would not vote to confirm anyone before the election.
Pressure will grow on others to follow, especially moderates such as Susan Collins of Maine, who has a tough re-election fight of her own. Then there’s Mitt Romney, who takes special delight in undercutting Trump. He’s the only GOP Senator who voted yes on impeachment, so it would not surprise if he joins Murkowski.
On the other hand, vice-president Mike Pence has not been shy about using his power to break a Senate tie, and would surely be willing to be the 51st vote for a Ginsburg replacement.
The confirmation process, because of the timing, is an issue all on its own. Three incredibly bitter and hostile months passed between Brett Kavanaugh’s nomination and his confirmation last year.
While that’s longer than the reported average of 2.2 months in the last 45 years, even a process of average length would go well beyond election day on Nov. 3.
Make no mistake, there will be nothing average about filling the Ginsburg seat. Constitutional conservatives now hold five of the remaining eight spots, though Chief Justice John Roberts often voted with Ginsburg and the three other liberals to make a majority.
A sixth conservative on the Court could be dynamite to Democrats on numerous issues, including abortion, religious liberty, law enforcement, immigration and racial quotas.
Dems often look to the federal courts to approve measures they can’t get through Congress. The prospect of that avenue being closed has led to talk within the party that, the next time they hold Congress and the White House, they would expand the court to perhaps 13 members.
Knowing that, Republicans have both the right and a reason to use their power until the congressional term ends Jan. 3. Indeed, because the confirmation likely would not be settled by Election Day, it’s conceivable that the Senate could take its final votes in late December, even though some members of both parties may have lost their elections.
Talk about ending 2020 with a bang.
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