Do not despair. It’s not Joe Biden or Chuck Schumer who have huge political hurdles to jump here, but Donald Trump and Mitch McConnell. Yes, those people are despicable and will do anything. But this fight is winnable.
Here’s how. First, Mitch is going to start seeing private polls this week from the key Senate races, and my bet is that those polls will show him that holding a vote for RBG’s replacement before the election will cost him his majority. Ramming through a vote before the election surely violates your average person’s sense of fair play. And while we’re a very polarized country, there still are independents and swing voters, and my hunch is they’ll be two-to-one, maybe three-to-one, against a pre-election confirmation. Goodbye, Susan Collins. Goodbye three or four more.
I admit I could be wrong about the polls, but if I’m right, it comes down to this question: Is McConnell willing to sacrifice his Senate majority to get this Supreme Court seat? It is always said that he cares more about his majority than anything.
But—he just might be willing to do that. And if he is, there isn’t a lot Democrats can do.
However, Trump is going to be looking at the same polls. And those polls will show, I’d bet, that ramming through a vote will cost him 2 or 3 points. And he doesn’t have any points to spare. Beyond that, imagine how a pre-election confirmation will energize the broad left. People will stand in line for hours to vote like never before.
Yes, Trump is a thug who knows only one mode, which is to cheat and win. But if it seems to him that pushing through a quick vote will result in his defeat, he might tell Mitch to tap the brakes.
Obviously, a factor here will be how many GOP senators are willing to say in these coming days that they’re not in favor of having a vote before the election. That’s kind of a moving target right now; Lisa Murkowski’s statement on Sunday seemed pretty definitive, but note how slippery Collins’ statement on the matter was. She said “the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.” But she did not say “I will not cast such a vote.”
It’s not at all impossible that some combination of Collins, Lisa Murkowski, Mitt Romney, Charles Grassley, Cory Gardner, and maybe one or two others will band together to prevent a pre-election vote. Some of their necks are on the line in November, and their necks are always the first thing politicians think about. In addition, Pat Toomey of Pennsylvania and Rob Portman of Ohio are up in 2022, and they represent states where a fast vote is likely to be unpopular.
I’m not saying it’s guaranteed, obviously. But I sense a decent chance that enough Republicans might see that a pre-election vote will just gut them at the polls.
If so, then the ballgame moves to post-election. There are four scenarios.
First, if Trump wins and the Republicans keep the Senate, that’s that, obviously. Second, if Trump wins and the Democrats take the Senate, Republicans will surely hold a vote during the lame-duck session. Third, Biden wins and the Republicans keep the Senate. They’ll still ram someone through in the lame duck. So they get their justice under these three scenarios.
But if Biden wins and the Democrats take the Senate—and especially if Mark Kelly beats Martha McSally in Arizona, because that’s a special election and he can be sworn in once the secretary of state (a Democrat) certifies the results on Nov. 30—then things get interesting.
First of all, I expect that polls will be massively against the Republicans doing it. Eyes will turn to Portman and Toomey, especially if Biden won their states. Ron Johnson of Wisconsin is also up in ’22, but that hack will do whatever Trump wants. Still, pressure on Republicans not to hold a vote after an election in which they just got creamed will be enormous. And no, Mitch doesn’t care, I know that, but maybe four of them will.
Second: Biden, and the Democrats generally, should refrain from all court-packing talk before the election. Keep the moral high ground. Keep the focus on Republican cheating. But once safely elected, Biden and Schumer should make it clear: You do this, and we’ll put four more justices on the court in the first 100 days. So you’ll have your 6-3 majority for about four months.
Republicans will be inclined not to take that threat seriously, as The Daily Beast reported Sunday, and Democrats might not finally have the stomach for it. But they have to threaten it, and the threat has to be credible, which means people like Joe Manchin and Chris Coons can’t throw cold water on it. Biden should name the four people he will put on the court, and they should all be people of color in their forties or early fifties. That will infuriate and terrify Republicans and conservatives, to have to picture a 13-member Supreme Court that’s filled with a bunch of younger, non-white liberals.
If you put a gun to my head, I’d still admit that Trump will probably get his justice. These people know no ethic except power. It sickened me over the weekend to hear Mitch and Lindsey Graham explain that this is different from the Merrick Garland situation because the White House and the Senate are in the hands of the same party, as if that were some kind of principle. The only “principle” is: This is different because we can get away with it.
But I think there’s a pretty decent chance—less than 50 percent, but decent—that they can be stopped. Or that even if they can’t, they will pay a massive electoral price.
I think the Biden campaign is exactly right to make this about the Affordable Care Act. Health care is universal—it’s an issue that speaks to everyone: Latinos, working-class white women, everyone. Trump will lie about having a better plan in the works, of course, but only the nutters will believe him.
As political scientist Theda Skocpol of Harvard said to me Sunday: "Biden can and should repeat that Trump and the Republicans are trying to rush this appointment to get their far-right justice seated for the Scotus review of the Affordable Care Act right after the election, because they are still obsessed with getting rid of that law and all its protections for most Americans. Trump hates Obama and does not care how many millions of Americans he hurts in his effort to obliterate Obama’s achievements."
Trump/Republican assaults on democracy, so numerous and blatant to you and me, mostly slip past most nonpolitical people. But this one won’t. They may pull it off. But they will pay.