WASHINGTON — Senate Majority Leader Mitch McConnell declared Friday he will support President Donald Trump in attempting to fill the late justice Ruth Bader Ginsburg’s Supreme Court seat this fall, despite the imminent presidential election.
“Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise,” he said in a press release. “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
McConnell famously refused to allow former president Barack Obama’s nomination of Judge Merrick Garland to proceed in 2016. At the time, McConnell argued it was an election year and voters should decide who filled the next Supreme Court seat; Garland was nominated in March of that year, eight months away from the election.
Responding to cries of hypocrisy from the left, McConnell has said that rule only applied because the Senate was controlled by a different party than the president; he reiterated that argument Friday.
Trump himself did not appear to be aware of Ginsburg’s death when McConnell released the statement. The news of Ginsburg’s death came during a campaign rally in Minnesota, where Trump did not show any indication he was aware of the news, aside from praising his potential future Supreme Court nominees, including Sen. Ted Cruz, and emphasizing the importance of the election for the future of the court. The White House did not immediately respond to a request for comment.
McConnell has long been on record saying he would appoint a Trump nominee to the Supreme Court in 2020 if a seat opens up, despite blocking Obama’s nominee in 2016. “Oh, we’d fill it,” McConnell told supporters in Kentucky last year.
The Friday night announcement of Justice Ruth Bader Ginsburg’s death comes less than seven weeks before the next presidential election. But even if Trump loses to Joe Biden, Republicans will control the Senate until at least January.
Republicans hold a 53-seat majority in the 100-seat chamber. In the event of a tie, Vice President Mike Pence casts the tie-breaking vote. Because of that, four Republican senators would need to object to a new Supreme Court nominee in order to block a nomination, assuming all Democrats are opposed.
The White House is poised to swiftly name a nominee — Trump released a list of Supreme Court candidates he’d like to nominate just last week. The unusual practice of publicly naming potential candidates has given the administration and conservative legal advocacy groups time well in advance of an actual open seat to vet potential nominees and develop a confirmation strategy. Trump announced the nomination of Justice Brett Kavanaugh just two weeks after now-former justice Anthony Kennedy announced his retirement in July 2018.
Republican nominees already hold a 5–4 majority on the Supreme Court, but replacing Ginsburg would shift the court even further to the right; justices serve lifetime appointments and can only be removed through impeachment, so the next justice could spend decades on the bench. Trump has lashed out at Chief Justice John Roberts Jr. for siding with Ginsburg and the court’s liberal wing in rulings against his administration, suggesting he would try to fill the next vacancy with a more politically reliable nominee.
According to NPR, before she died, Ginsburg told her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed.”
McConnell has been open about filling judicial vacancies and the reshaping the ideological makeup of the courts being the top priority of the Senate under the Trump administration. Under his watch, the Senate has rarely passed meaningful legislation, but it has confirmed more than 200 of Trump’s judicial nominees.
Senate Judiciary Committee chair Lindsey Graham released a statement Friday night expressing “great sadness” about Ginsburg’s death, but he did not address what he would do if Trump announced a nominee. In October 2018, Graham said, “If an opening comes in the last year of President Trump's term, and the primary process has started, we'll wait to the next election.” Asked to confirm that statement at the time, Graham replied: “Hold the tape.”
Sen. Lindsey Graham justifies his treatment of Merrick Garland: "If an opening comes in the last year of President Trump's term, and the primary process has started, we'll wait to the next election"
Graham’s office did not immediately return a request for comment. Republican Sen. Chuck Grassley is also on record saying he would not support a Supreme Court nomination in 2020, though he and Graham have been more reliable party-line voters over the past four years.
Trump has made the future of the Supreme Court a central part of his reelection strategy, similar to his approach in 2016. Last week, he added 20 more judges, politicians, and lawyers to the two dozen names already on his short list. Conservative operatives have long predicted that Trump would choose a woman as the nominee if Ginsburg’s seat became open, either through her retirement or her death, with Judge Amy Coney Barrett of the US Court of Appeals for the 7th Circuit and Judge Joan Larsen of the 6th Circuit long considered frontrunners.
The confirmation timelines for Trump’s first two Supreme Court nominees offer a guide for how a third nomination could play out over the coming months.
It took just over two months from start to finish for the Senate to confirm Trump’s first Supreme Court nominee, Justice Neil Gorsuch. He was nominated Feb. 1, 2017, and confirmed 54–45 on April 7, 2017. Democrats were largely united against his nomination, and McConnell pushed through changes to Senate procedure to make it all but impossible for Democrats to use a filibuster to block Gorsuch’s nomination from going forward.
Trump’s second Supreme Court nominee, Justice Brett Kavanaugh, proved even more divisive than Gorsuch, but even that bitter political fight only took three months from nomination to confirmation. Trump announced Kavanaugh’s nomination July 9, 2018, and the Senate confirmed him Oct. 10, 2018, a time period that included an additional Senate hearing to vet allegations by Christine Blasey Ford that Kavanaugh sexually assaulted her at a party when they were both in high school decades ago; Kavanaugh denied the allegation, and he was confirmed 50–48.
Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine have both said they would oppose voting for a Supreme Court nominee too close to the 2020 election, though those statements were made before Ginsburg’s death was announced Friday evening. Both senators, as well as Mitt Romney of Utah, have cast high-profile votes in opposition of Trump. Collins voted with Murkowski and the late John McCain to kill Obamacare repeal. Romney voted to impeach Trump earlier this year. Murkowski voted against Kavanaugh’s nomination to the Supreme Court (Collins voted in favor, while Romney was not yet in the Senate). None of their offices immediately responded to requests for comment from BuzzFeed News about the new vacancy.