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Replacing Ruth: Gaming It Out, Keeping Perspective

John Peeler: Democrats can thus delay, but not derail any Trump nominee to replace Ruth Bader Ginsburg. To stop it they will need four Republican defections.
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The late Justice Ginsburg was the leader of the liberal wing of the Supreme Court almost since she was appointed in 1993, and was an especially strong voice for the rights of women. Yet we should remember that the last time liberals were a majority of the Court was when Earl Warren was replaced by Warren Burger in 1969. The Court, through all the vicissitudes of the last half century, has been majority conservative. That there were still occasional liberal decisions like Roe v. Wade can be attributed to supposedly conservative justices like Harry Blackmun going off the reservation.

In general, the Court has had a 5-4 conservative majority. The prospect of Donald Trump replacing one of the most liberal justices with one on the far Right would tip that balance to 6-3. This of course follows Senate Majority Leader Mitch McConnell’s move in 2016 to deny a vote to President Obama’s nominee to replace the conservative Justice Antonin Scalia. Had that nominee, Judge Garland, been approved, it would have given the liberals a majority. But denying him a vote was a gratuitous insult by McConnell: he had the majority in the Senate and could have defeated Judge Garland anyway.

Democrats can thus delay, but not derail any Trump nominee to replace Ruth Bader Ginsburg. To stop it they will need four Republican defections.

Now, on first glance, McConnell will be totally in control once Trump nominates a candidate. Cloture can be imposed on a majority vote, with only two hours of debate allowed after the cloture vote. What the Democratic minority can do is gum up the works by using Senate rules, and try to extend the committee hearings to expose any scandal about the nominee. None of that worked with Kavanaugh.

So McConnell, after blocking Obama's nominee because "the people should decide in the next election" will now be able to reverse that stance in the face of a likely Trump loss in November. It's grossly unjust. Maddening!

  1. Lisa Murkowsky has quite recently said she would not confirm any SC nominee until after the inauguration.
  2. Susan Collins is also on record opposing such a move, and she is in a very tight reelection fight.
  3. Cory Gardner is also in a tough reelection fight.
  4. Mitt Romney is hostile to Trump and in a safe seat in Utah.
  5. Lindsey Graham is on record opposing such a move,
  6. as is Charles Grassley.
  7. Rand Paul is just independent and ornery enough to go against McConnell.
  8. Steve Daines and
  9. Thom Tillis are also in tough reelection fights.

Democrats can thus delay, but not derail any Trump nominee to replace Ruth Bader Ginsburg. To stop it they will need four Republican defections. Here are some likely candidates: 

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These are more or less in declining order of probability.

Murkowsky and Collins have already declared their opposition to any vote under this president. Gardner, I don't know. Romney is unpredictable, but he despises Trump and is no right-winger. The others, who knows?

If they do ram a nominee through before the election it will cost them at the polls (Thom Tillis, Joni Ernst and Lindsey Graham would be particularly endangered).

If they wait until the lame duck period, retiring or defeated senators would feel less pressure to get in line (Lamar Alexander?).

But anyone with plans to stay in the Senate (Murkowsky) would have to consider the vote carefully. If she goes through with it, she might have to leave the GOP. Of course, she already won reelection as an independent after losing the GOP primary, but she could end up caucusing with the Democrats, like the Maine Independent, Angus King.

Another wild card: if Mark Kelly wins the special election in Arizona (he’s been consistently leading in the polls) he could take office as early as November 30, thereby shrinking Mitch’s majority to two.

impeachment unavoidable

In sum, it’s advantage McConnell, but the outcome is by no means clear. And if McConnell and Trump win this one, it could be a pyrrhic victory if it hands the Senate to the Democrats and bolsters Biden’s advantage in the presidential race.

John Peeler