On Feb. 13, 2016, then-Supreme Court Justice Antonin Scalia was found dead in a ranch bedroom in Texas. It was 268 days before the November election and Senate Majority Leader Mitch McConnell (R-KY) was quick to quip that there would not be a replacement until the next president was chosen.
On Friday evening, Justice Ruth Bader Ginsburg died of complications from cancer 46 days before the presidential election. But McConnell has already made it clear that he sees no reason to wait for voters to weigh in on who should pick her replacement. The Kentucky Republican declared just hours after the death was announced: “President Donald Trump’s nominee will receive a vote on the floor of the United States Senate.”
McConnell’s monomaniacal focus on filling the courts with young conservatives will be tested in the next few months by a variety of factors. But the main one will be whether four Senate Republicans will prove unwilling to go along with confirming a replacement for Ginsburg after their party spent 237 days denying Judge Merrick Garland—President Barack Obama’s nominee for the Scalia seat—a hearing, let alone a vote.
Already, one of those Republicans, Sen. Lisa Murkowksi (R-AK), has said she would not support filing a Supreme Court vacancy in 2020, citing the Garland precedent, a position she reiterated on Friday night. Sen. Susan Collins (R-ME) had made a similar declaration. And even close Trump allies—albeit ideologically heterodoxical ones—were making arguments to let the election conclude before filling the post.
“Of course they should [wait] but they won’t,” Alan Dershowitz, a celebrity attorney who also served on Trump’s legal defense during the impeachment trial, said on Friday night, reacting to the news. “I’m deeply distressed. She was a great woman, a great justice, and a great American… I think the Republicans are going to try to push it through… If it’s a close election, they will want to have their justices on the bench.”
Asked if he had the chance, what he would say to President Trump now, Dershowitz added, “I would say Republicans ought to stick to their position that they took when Scalia died… Let the American people decide who they want to see nominate the next Supreme Court justice.”
But elsewhere, there were not many overt calls for patience from Trump world figures. Sen. Lindsey Graham (R-SC), who chairs the Judiciary Committee through which any nomination must go, had previously said he would also oppose any confirmation during an election year. But the senator also finds himself in a dogged re-election fight, with a particular need to ramp up support from conservative voters in his state. The statement he released after Ginsburg’s death conveyed no position on—and, therefore, no hesitation with—filling the seat.
“It was with great sadness that I learned of the passing of Justice Ginsburg,” Graham said. “Justice Ginsburg was a trailblazer who possessed tremendous passion for her causes. She served with honor and distinction as a member of the Supreme Court. While I had many differences with her on legal philosophy, I appreciate her service to our nation. My thoughts and prayers are with her family and friends. May she Rest In Peace.”
For Democrats, there are few if any tools they possess to stop a nomination from going through, save mustering up an overwhelming amount of public pressure to persuade those four Republicans to not only oppose a nominee through the election, but through the period after the election until the next president is inaugurated.
It’s a gargantuan task. Among Democrats and liberal activists, there was widespread mourning, but also an immediate, historic sense of urgency and calls to action and strategizing. Around 9:30 p.m. on Friday, various progressive groups, including Demand Justice, convened an emergency conference call to discuss the way forward following Ginsburg’s death, according to a source familiar with the matter. Demand Justice announced on the call that it is pledging a $10 million ad campaign around the vacancy fight.
Publicly, Democratic leader Sen. Chuck Schumer (D-NY) tweeted that “this vacancy should not be filled until we have a new president”—adopting, verbatim, the language McConnell had used after Scalia’s death.
But to many Democrats, the question was not whether McConnell would push for a nominee, but when.
“I think the only question is whether he tries to jam it through now or the lame duck. Either would be a clear abuse of the process but that won’t stop McConnell,” said Jim Manley, a former top aide to then-Senate Majority Leader Harry Reid (D-NV). “Under no scenario,” Manley added, would McConnell wait until the next president.
Manley said that it was his suspicion that the process would happen after the election due to the sheer logistics of getting a nominee confirmed. There was, he noted, the need for a background investigation, a review by the Judiciary Committee itself, a hearing on the nominee, and procedural hurdles that could drag out two or more weeks. The average number of days to confirm a Supreme Court justice is 70, according to the Congressional Research Service. But there is also nothing that prevents McConnell from scrapping those norms and rules altogether, should he want to expedite matters.
“Rules are rules, but they’ve long become accustomed to them breaking the norms,” said Manley.
Within the GOP conference, there’s less of a clear sense as to what McConnell will do. The Kentucky senator, focused on retaining the GOP majority at all costs this fall, faces a situation where the politics of an election-eve Supreme Court fight could have varying effects for his most vulnerable members. A key swing vote for Justice Brett Kavanaugh’s confirmation, Sen. Susan Collins (R-ME), faces the re-election battle of her career this fall, and could burnish the independent image she touts by opposing any confirmation. Other moderates in tough races could make similar calculations. So too could Sen. Mitt Romney—the president’s sharpest GOP critic in the Senate—as well as several retiring Republicans.
To placate those members, McConnell could hold off until after the election. But he’s not the only actor in this play. Trump has long credited his 2016 win to the conservative voter enthusiasm over the possibility of filling a Supreme Court vacancy. And a potential vacancy at the high court has never been far from the minds of top White House officials. Earlier this month during a formal press conference in the Diplomatic Reception Room, Trump announced he had expanded his list of possible judicial picks by 20 individuals including Sens. Ted Cruz (TX), Tom Cotton (AR), and Josh Hawley (MO), as well as a rising Republican rising star, Kentucky Attorney General Daniel Cameron.
“Should there be another vacancy on the Supreme Court during my presidency, my nominee will come from the names I have shared with the American public, including the original list and these 20 additions,” Trump said during a press conference on Sept. 9.
Trump then challenged former Vice President Joe Biden to release a list of potential nominees—a dare the Democratic nominee has, so far, ignored.
But while Trump recently produced a fresh list of potential nominees, speculation about whom he would pick has centered largely around Judge Amy Coney Barrett, who serves on the Seventh Court of Appeals. In picking Barrett, Trump would please his conservative base but also create a potentially thorny confirmation process at a time when tensions are already at a fever pitch.
A former clerk for Justice Antonin Scalia, Barrett has the reputation as a conservative, but in many ways is still untested on major issues that could come up before the Supreme Court.
At 48, Barrett would be the youngest of the potential justices Trump has considered for the court and she has the least experience of anyone on the Supreme Court bench.
News of Ginsburg’s death broke as Trump was at a Minnesota campaign rally, giddily running through a standard roster of applause lines. As he spoke, he did not appear to know about the political and legal grenade that had just been tossed into official Washington. Two Trump aides told The Daily Beast mid-speech that the president didn’t know, though various other senior administration officials were well aware and preparing to discuss the matter with him, as soon as later in the evening.
Though apparently not yet informed of Ginsburg’s death, Trump did mention the importance of the court—part of a familiar rally riff that took on new weight in light of the new political reality.
“And that's why the Supreme Court is so important, because the next president will get one, two, three or four Supreme Court justices,” Trump said. “I had two. Many presidents have had none, they've had none, because they're there for a long time."
At the White House in Washington, D.C., the American flag was quickly lowered on Friday to half-staff in memory of Justice Ginsburg, according to White House spokesman Ben Williamson.
As Trump boarded Air Force One, he told reporters he had just learned of Ginsburg’s death.
"Just now?" he responded when asked about her death, according to CNN’s Kaitlan Collins. “She led an amazing life. What else can you say? She was an amazing woman—whether you agree or not—she was an amazing woman who led an amazing life.”