Trump Urges Quick Action on High Court Nominee, Wins GOP Support
Republicans Face Political Calculation in Vote on Trump Nominee
(Bloomberg) -- President Donald Trump urged Senate Republicans to act quickly to replace late Justice Ruth Bader Ginsburg, and several leading members said they would despite outrage expressed by Democrats still smarting from the denial of an Obama nominee four years ago.
Trump tweeted Saturday that the senators have an obligation to act “without delay,” setting the stage for a fraught pre-election political battle.
Trump gave no indication when he might name a nominee, and Senate Majority Leader Mitch McConnell gave no timetable for confirming his choice, beyond promising a vote in a statement. In a conversation with Trump Friday night, McConnell didn’t specify a candidate preference, and said that he can deliver a floor vote, according to people familiar with the matter.
South Carolina Senator Lindsey Graham, the chairman of the Judiciary Committee that considers court nominees, tweeted Saturday that he would support Trump “in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.”
Underscoring the rapidly unfolding partisan fight, just as Graham made his announcement all 10 Democrats on the Judiciary Committee released a letter to him calling on him to “state unequivocally and publicly” that he wouldn’t consider any nominee until after Inauguration Day in January.
“There cannot be one set of rules for a Republican President and one set for a Democratic President, and considering a nominee before the next inauguration would be wholly inappropriate,” they wrote.
Many of Trump’s allies, conservative activists and Republican aides focused on the expectation that there’s not enough time for a confirmation vote before the Nov. 3 election, people familiar with the matter said.
That raises the specter of a handful of defeated, lame-duck senators voting on Trump’s choice for a lifetime appointment to the court, even if the president also loses the election.
Trump and McConnell spoke on Friday night after Ginsburg’s death was announced, according to people familiar with the matter. The president has not yet made up his mind on a nominee, though Appeals Court Judge Amy Coney Barrett is seen as a front-runner, with fellow appellate jurists Barbara Lagoa and Amul Thapar also on the shortlist, the people, who asked for anonymity to discuss private conversations, said.
McConnell didn’t express a preference to Trump but reiterated his public vow that his nominee would get a vote in the Senate, the people said.
The likeliest scenario that’s emerged is that nomination hearings may be conducted before the election with a confirmation vote held after it, three people familiar with the matter said, speaking on condition of anonymity. Others said it remained too fluid to say.
It would then be up to McConnell to decide whether a pre-election vote is not only practical but politically viable.
At least seven incumbent Republican senators face tough re-election contests, and a pending fight over a pivotal Supreme Court seat could energize the party’s voting base, though it also risks motivating Democrats.
Imperiled Incumbents
Delaying a vote would avoid a politically perilous action for incumbent Republicans such as Cory Gardner of Colorado and Susan Collins of Maine, who are running for re-election in states Trump lost in 2016 and trail their Democratic challengers this year.
In a letter to his Republican colleagues obtained by the Washington Post, McConnell urged them to “keep your powder dry” in responding to the press until senators return to Washington if they’re unsure about what to say or are inclined to oppose giving a nominee a vote.
“This is not the time to lock yourselves into a position you may later regret,” he wrote.
The Senate would need to move faster than usual to confirm a nominee before the election 45 days from now. The average time from nomination to Senate vote -- after vetting and hearings -- is 69.6 days, or about 2.3 months, according to a 2018 report from the Congressional Research Service.
But McConnell in his letter said there was plenty of time to confirm a nominee this year. He cited Ginsburg’s nomination in 1993, which took only 50 days from the the time it was announced until she was confirmed.
Democratic Nominee Joe Biden has said the nomination should be deferred until after the election. “The voters should pick a President, and that President should select a successor to Justice Ginsburg,” he tweeted on Friday.
McConnell -- who denied a confirmation hearing for President Barack Obama’s pick to fill a vacancy on the high court in 2016 because it was an election year -- can force a vote any time he has 50 senators ready to back a confirmation with Vice President Mike Pence serving as the tie breaker. He can afford to lose three Republican votes and still press ahead.
Pushing a nominee through before Election Day would require the Senate to move with a atypical speed that dispenses with norms and traditions.
Justice Elena Kagan, Obama’s second and final Supreme Court pick, was confirmed 87 days after her May 10, 2010, nomination. Justice Neil Gorsuch, Trump’s first nominee, was confirmed 66 days after his Jan. 31, 2017 nomination. And Justice Brett Kavanaugh, Trump’s second high-court pick, was confirmed 89 days after his July 9, 2018, selection, with final action coming after a second and extraordinary round of hearings after Christine Blasey Ford accused him of trying to sexually assault her at a 1982 house party when they were in high school.
The confirmation process typically involves one-on-one meetings between the nominee and individual senators over many weeks. And the process before the Senate Judiciary Committee is quite involved and includes a lengthy background questionnaire for the nominee, a week of hearings, and a vote usually two weeks later before a full Senate vote is scheduled.
Two senior Republicans might find themselves facing questions about past statements about election-year Supreme Court nominations.
Former Judiciary Chairman Chuck Grassley of Iowa said in a May radio interview in the state that the Senate shouldn’t fill an opening on the Supreme Court before the election. “You can’t have one rule for Democratic presidents and another rule for Republican presidents,” he said, according to the Des Moines register. Grassley, who headed the committee when Obama’s nomination was blocked, issued a statement on Ginsburg Friday night that didn’t mention the effort to fill the vacancy.
Graham, his successor at the head of the panel, said in 2018 that “if an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election.” Graham is an ally and frequent golf partner of Trump.
In his tweet on Saturday, Graham cited the Democrats’ treatment of Kavanaugh and changes they made to Senate procedures on court confimations for his change of heart.
Arizona Situation
Delaying a vote until after the elections and before a new Congress is sworn in in early January has its own downsides. For one, Arizona Democrat challenger Mark Kelly is favored to beat incumbent GOP Senator Martha McSally in that state’s special election to serve out the remainder of the late John McCain’s Senate term. If he wins, he could be seated shortly thereafter, costing McConnell one vote.
Two Republican senators --Lisa Murkowski of Alaska and Collins -- have previously said preserving Roe v. Wade, the ruling the established abortion rights, would be a factor in their Supreme Court votes. Murkowski told Alaska Public Radio Friday before Ginsburg’s death was announced that if there were a vacancy on the court this year she wouldn’t vote to confirm a nominee before the election.
Yet McConnell could lose them and still confirm a justice if he can hold the line elsewhere. One of the most vulnerable Republican senators, Thom Tillis, tweeted Saturday that he’d support Trump’s pick.
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