“We know that some confirmations have occurred in a relatively short period of time,” Sen. John Cornyn of Texas, an ally of Senate Majority Leader Mitch McConnell, said as he emerged from a GOP leadership meeting. “But they’re probably during times of maximum cooperation. I don’t think there’s going to be maximum cooperation.”
“It would be the new recent world record” if the Senate confirmed Trump’s yet-to-be-announced nominee before Nov. 3, added Sen. Roy Blunt of Missouri, a member of the GOP’s leadership team. Indeed, Senate Majority Whip John Thune (R-S.D.) confirmed on Monday that a decision hasn’t yet been made, noting that GOP senators will meet in person on Tuesday to discuss a path forward.
But each scenario — confirming Ginsburg’s replacement before the election or in the lame-duck session — carries serious political risks for McConnell and Republicans, who are already at risk of losing their majority in the November election. Voting before the election could electrify liberals — but voting after, particularly if Trump loses, would be a decision of historic controversy that could lead to questions of legitimacy for whoever is seated on the high court.
Still, McConnell reiterated his vow on Monday that the chamber will vote “this year” on Trump’s nominee, but he was not specific on the timing.
“We’re going to keep our word once again,” McConnell declared. “We’re going to vote on this nomination on the floor.”
It comes as several hard-line conservatives and Trump allies, including Sen. Ted Cruz of Texas, are pushing Senate GOP leaders to hold a confirmation vote before Election Day. Sen. Rick Scott (R-Fla.) similarly said on Monday that “we ought to do it as soon as possible” and Sen. Richard Shelby (R-Ala.) said it should happen “expeditiously.”
McConnell has already locked down support among key Republicans to hold the confirmation this year, including the cadre of GOP institutionalists and those facing uphill reelection fights.
Senate Judiciary Chair Lindsey Graham (R-S.C.) indicated later Monday that he plans to move the nomination through the committee in time to vote before Election Day.
“We’ve got the votes to confirm Justice Ginsburg’s replacement before the election,” Graham said on Fox News Monday evening. “We’re going to move forward in the committee, we’re going to report the nominee out of committee to the floor of the United States Senate so we can vote before the election. That’s the constitutional process.”
Sen. Cory Gardner (R-Colo.), one of the most vulnerable incumbents, became the latest on Monday to back McConnell, writing in a statement: “I have and will continue to support judicial nominees who will protect our Constitution, not legislate from the bench, and uphold the law. Should a qualified nominee who meets this criteria be put forward, I will vote to confirm.”
Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) oppose moving forward with a nomination, meaning that McConnell can afford to lose only one more Republican in the 53-47 GOP-majority Senate. Sen. Mitt Romney (R-Utah) has yet to reveal his position, as Democrats remain united that Ginsburg’s replacement should not be considered until next year.
“We’ll find out at lunch tomorrow what the plan is, but I think what’s in play here is to have one set of rules that we consistently follow,” Collins, who faced backlash for backing Brett Kavanaugh’s Supreme Court confirmation in 2018 and who is trailing in polls in Maine, said on Monday. “In this case, we’re talking about 40 days before the election. So I believe we should wait and see who the winner of the election is.”
An average Supreme Court confirmation process takes more than two months, and the election is 43 days away. And even if the full Senate or just the Judiciary Committee remained in session through October, it would deprive some of McConnell’s vulnerable incumbents of the opportunity to campaign in their home states in the final stretch.
“I think it should take as long as it takes, and at the same time I don’t think we should drag it out,” Blunt said. “I don’t think we should have a barrier here that gets in the way of people feeling like this took as long as it needed to take.”
Cornyn posited that “whether it happens before or after the election is not the most important point.”
“It’s sort of like a vaccine. I’m for doing a vaccine when it’s safe and effective. But I’m not for accelerating the process just to [accelerate it]. I’d want to make sure we do it right and it’s a pretty big step,” he said.
Other GOP senators have raised concerns about entering Election Day with eight justices on the high court, noting that the 2000 presidential election was decided by the Supreme Court.
But waiting until after the election could protect vulnerable incumbents, while using the forthcoming vote to turn out the conservative base on Nov. 3. If the vote is after the election, though, McConnell could have a slightly slimmer majority if Sen. Martha McSally (R-Ariz.) loses to her Democratic challenger, Mark Kelly. In that scenario, Kelly could be sworn in later in November instead of January because the race is a special election.
“It gets too complicated after that with the variable in Arizona, and I think if the shoe were on the other foot there would be a quick process to get the thing done,” said Sen. Mike Braun (R-Ind.).
Republicans dismissed concerns about confirming a nominee in the lame-duck period, though, if Trump loses reelection or Democrats win control of the Senate.
“A lot of presidents have lost and had judges confirmed during the lame duck,” Blunt said.
Regardless of when the confirmation vote occurs, McConnell said Monday the Senate “has more than sufficient time to process the nomination,” citing Justice John Paul Stevens’ confirmation process, which took just 19 days, and Ginsburg’s, which lasted 42 days.
Trump said Monday he wants to unveil a nominee, who he says will be a woman, at the end of the week after Ginsburg is laid to rest. The president has floated several names, including Amy Coney Barrett and Barbara Lagoa, both of whom serve on the federal bench.
McConnell and Senate Republicans spent most of the day Monday rebutting charges of hypocrisy, given that they held up President Barack Obama’s nominee to fill Justice Antonin Scalia’s seat eight months before the 2016 election but are moving forward with Trump’s nominee less than six weeks before the 2020 election. Republicans say it’s different now because the GOP holds the White House and the Senate, unlike in 2016 when Republicans controlled the Senate and Obama was in the White House.
“The American people are about to witness an astonishing parade of misrepresentations about the past, misstatements about the present, and more threats against our institutions,” McConnell said.
Meanwhile, Democratic presidential nominee Joe Biden is appealing directly to Republicans who might still be undecided, pleading with them to follow their “conscience.” As the minority party in the Senate, Democrats have few, if any, procedural tactics at their disposal to delay or stop a Supreme Court nomination. And Biden has little sway over current Senate Republicans, most of whom did not serve with him in the chamber.
Senate Minority Leader Chuck Schumer said McConnell is taking an “utterly craven” position and undertaking “an exercise is raw political power.”
Schumer said if McConnell moves forward, the Senate will never be the same and over the weekend threatened payback.
“Tell me how this would not spell the end of this supposedly great deliberative body,” he added. “Because I don’t see how.”