Nine months out from the 2016 election, Senate Majority Leader Mitch McConnell (R-Ky.) made the unprecedented decision not to let President Barack Obama fill a Supreme Court opening because, he argued, the next president should get to pick the nominee.
He left the seat vacant, handing Donald Trump the political gift.
On Friday, less than two months out from the election, Supreme Court Justice Ruth Bader Ginsburg passed away.
This time, McConnell is not waiting around.
Just hour after Ginsburg’s death was announced, the GOP leader said he would be moving forward as soon as Trump does. This year is different from 2016, he said, because the Senate and the president are in the same party.
“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,” he said in a statement. “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
The opportunity to replace one of the court’s most liberal justices with a conservative is a dream come true for many in the Republican Party. If Trump’s nominee is confirmed, the court would be tilted 6-3 toward conservatives.
Senate Minority Leader Chuck Schumer (D-N.Y.) tweeted that McConnell should follow the rule he created under Obama. In fact, he used, verbatim, the words that McConnell said in 2016.
“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,” he wrote.
There’s little Democrats can do to stop Trump’s nominee from getting confirmed, at least procedurally. They’re in the minority, and a Supreme Court nominee needs just 51 votes to pass.
The best hope for Democrats is that their entire caucus opposes the nominee, and that a few moderate GOP senators decide to join them. McConnell could not lose more than three votes from his caucus. In that scenario, the Senate vote would be tied 50-50, and he would need Vice President Mike Pence to cast a tie-breaking vote.
But a handful of Republican senators have already signaled they may not be on board with moving a nominee this year.
Sen. Lisa Murkowski (Alaska), the only Republican to vote against Brett Kavanaugh, has said that she would oppose a Supreme Court nominee in the middle of an election year or during a lame-duck session in November and December.
“When Republicans held off Merrick Garland it was because nine months prior to the election was too close, we needed to let people decide. And I agreed to do that,” she said in August. “If we now say that months prior to the election is OK when nine months was not, that is a double standard and I don’t believe we should do it. So I would not support it.”
Sen. Chuck Grassley (R-Iowa), who previously chaired the Judiciary Committee and blocked Obama’s pick for the Supreme Court, said that filling a vacancy in 2020 would violate the standard Republicans set in 2016, and that he “couldn’t move forward with it” if he were still the chairman.
Democrats will also be keeping an eye on Sen. Mitt Romney (R-Utah), one of the few GOP senators willing to break with, and criticize, the president. He was also the only Republican senator to vote to impeach Trump.
The most pressure will be put on the GOP senators who are up for reelection in tight races ― particularly Sen. Susan Collins (Maine) ― who has long touted her moderate record and support for abortion rights but largely votes for Trump’s judicial nominees anyway. She was the target of an intense lobbying effort during the Kavanaugh fight and will likely be again this round.
The Maine senator issued a statement Friday praising Ginsburg as “a trailblazer for women’s rights,” but said nothing about whether she would support filling her Supreme Court seat this year.
But Collins said earlier this month that she would not vote to fill a Supreme Court vacancy in October, or in the lame-duck session if there is a change in presidents, according to New York Times reporter Jonathan Martin.
“I think that’s too close, I really do,” she told Martin, who tweeted the news.
McConnell wrote to his GOP colleagues Friday night, urging them to avoid taking a stance on whether they will vote for a Supreme Court nominee this year.
“For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry,” McConnell wrote in the letter obtained by The Washington Post. “This is not the time to prematurely lock yourselves into a position you may later regret.”
He also emphasized that there was enough time to fill the vacancy this year.
Republicans have long made judicial confirmations a motivating factor for turning out their base, and they focused on it again at this year’s convention ― in contrast to Democrats, who did not. But polls show that Democrats are increasingly considering the courts a central issue in their vote for president.
During the Democratic presidential primary, the idea of packing the court ― adding more justices to the Supreme Court ― gained traction, with candidates including Elizabeth Warren, Kamala Harris and Julian Castro backing it. Joe Biden, now the Democratic nominee, did not.
Days before she died, Ginsburg was thinking about the timing of her replacement. She dictated a final statement to her granddaughter, Clara Spera, according to National Public Radio: “My most fervent wish is that I will not be replaced until a new president is installed.”