• Wed. Dec 2nd, 2020

For Mitch McConnell, Ruth Bader Ginsburg’s Death Prompts Stark Turnabout

Senator Mitch McConnell vowed late Friday that he would move to put President Trump’s nominee to replace Justice Ruth Bader Ginsburg on the Supreme Court, breaking with his 2016 stance and setting the stage for a bruising battle that promised to reverberate through the 2020 elections.

“Americans re-elected 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,” Mr. McConnell said in a statement issued not long after news of Justice Ginsburg’s death became public. “Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”

It was a stark turnabout from his position four years ago, when Mr. McConnell, Republican of Kentucky and the majority leader, reacted to the death of Justice Antonin Scalia by declaring that a successor should await the outcome of the presidential election, and then proceeded to block President Barack Obama’s nominee, Judge Merrick B. Garland.

Senator Chuck Schumer, Democrat of New York and the minority leader, sought to remind Mr. McConnell of that former position minutes after the news of Justice Ginsburg’s death, saying in a tweet: “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.”

His words were not accidental. They were a verbatim recitation of what Mr. McConnell said in his surprising announcement in February 2016 immediately after Justice Scalia’s death.

Mr. Schumer was clearly trying to shame Mr. McConnell into holding to his own standard and refraining from filling the now vacant Supreme Court seat, just 46 days before Mr. Trump stands for re-election.

[Read more on Trump’s Supreme Court nominees list.]

But Mr. McConnell has already made it abundantly clear that shame is not a consideration when it comes to his unbridled efforts to pack the judiciary with conservative jurists named by Mr. Trump, and the Supreme Court is certainly no exception.

In his statement Friday night, Mr. McConnell made no mention of the timing for considering nominees, a sign that he was calculating the best scenario for Supreme Court hearings and a vote, given that several Republican senators are facing tough re-election challenges, and a handful have suggested they would not want to move forward with a confirmation so close to the election.

Mr. McConnell, who is also up for re-election, vowed to plunge ahead anyway, even though in the case of Mr. Scalia, the vacancy occurred nine months before the election, while Justice Ginsburg died just over a month before the election and with early voting already underway.

There are significant differences between 2016 and today. Then, Republicans held the Senate majority and had the power to refuse Mr. Obama’s nominee. Democrats are in the minority now, and are virtually powerless to block Mr. Trump and Senate Republicans from moving ahead to fill a vacancy in the court if they decide they want to do so. Rules changes in the Senate since 2013 have left control of judicial nominees entirely in the hands of the majority if they can hold their forces together.

It is not at all clear whether they can. A small number of Republican senators — Susan Collins of Maine, Lisa Murkowski of Alaska, Lindsey Graham of South Carolina, the chairman of the Judiciary Committee, and Charles E. Grassley of Iowa — have indicated they would not want to fill a Supreme Court vacancy so close to a presidential election. But it was not certain whether they would hold to that stance.

The question for Mr. McConnell and his fellow Republicans would be whether they could secure 50 votes to push through a nominee over what would undoubtedly be intense Democratic objections. Given their reliance on the rationale of the looming presidential election in 2016, some Republicans — particularly those like Ms. Collins who are up for election in a difficult environment this year — might be reluctant to move ahead, fearing a backlash from more moderate and independent voters they are counting on to prevail.

Certainly, any Republican who resists would come under tremendous pressure given the chance for Mr. Trump, who is battling for re-election, to get a third nominee for the court and lock in his conservative majority. Republicans, led by Mr. McConnell, have made their push to place more than 200 conservative judges on the federal bench a centerpiece of their agenda, and Mr. McConnell will no doubt want to put an exclamation point on that achievement.

Ms. Collins, already embattled in Maine partly because of her 2018 vote to confirm Brett M. Kavanaugh to the Supreme Court, said recently that she would not be inclined to move forward so close to the election.

In an interview in Maine this month, Ms. Collins said she would be uneasy about seating another justice in October. “I think that’s too close — I really do,” she said.

ImageSenator Susan Collins, embroiled in a tight election battle, might be reluctant to confirm a nominee so close to the election.
Credit…Anna Moneymaker/The New York Times

Mr. Graham, whose panel would lead the confirmation process, issued a statement Friday night praising Justice Ginsburg but remaining silent on how the panel would handle a nomination by Mr. Trump. But at an October 2018 appearance at the Atlantic Festival in Washington during the Senate’s deliberations on the nomination of Justice Kavanaugh, he pledged not to confirm a new Supreme Court justice under circumstances similar to the present.

“If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election,” Mr. Graham said.

Hours before Justice Ginsburg’s death was announced, Ms. Murkowski told an Alaska radio station that she would not vote to confirm a Supreme Court nominee before Election Day.

“We are 50 some days away from an election,” she told Alaska Public Media.

Mr. Grassley, who led the Judiciary Committee in 2016, has also said that he would not conduct Supreme Court confirmation hearings in a presidential election year after the way Republicans blockaded the Garland nomination. But Mr. Graham, not Mr. Grassley, is now chairman of the panel.

Mr. McConnell argued that he had not reversed his position. The difference, he has said, is that in today’s case, the same party controls both the Senate and the White House as opposed to 2016, when Democrats held the presidency and Republicans the Senate.

But at the time, that was not a main element of the Republican argument; their case was that a presidential election was gearing up and the voters should decide who gets to fill that seat.

Jonathan Martin and Nicholas Fandos contributed reporting.