President Donald Trump has said he’ll nominate a replacement to fill the late justice Ruth Bader Ginsburg, and Senate Majority Leader Mitch McConnell has said there will be a vote.
But will there be a vote before the election, and will Republicans actually be able to confirm a justice to the Supreme Court?
If you’re focused on the Biden–Trump race: The Senate is very close this year. There are a lot of competitive races across the country, many of them in the same states where the presidential race is close, and several where Republicans trail in polling this fall. The big question of the lifetime Supreme Court appointment will be looming over the short-term question of who controls the Senate.
Already, three Republican senators in tightly contested seats — Martha McSally, Thom Tillis, and Kelly Loeffler — have said there should be a vote. Because of their majority, Republicans can afford to lose only four votes and still confirm a justice.
One, Maine's Susan Collins, has said that not only should there not be a vote, that the next president — whether Trump or Joe Biden — should select the replacement.
But it’s hard to know yet how the public will respond to the idea of replacing a justice in the weeks before the election, though how much anger from the conservative base a Republican senator might risk incurring by going against Trump seems more clear. There is also the lingering question of whether Republicans will instead push the nomination process until after the election, when they will still hold the majority, no matter what happens this fall, through January — potentially keeping the court in place as an election issue for not just Democrats.
Late Friday, McConnell sent what’s known as a “dear colleague” letter advising Republicans who did not want a vote before the election, or those who were unsure of their position, to keep their “powder dry” — and not commit publicly to a position.
Colorado’s Cory Gardner, another Republican in a competitive race, has not publicly commented on the matter of a vote since Ginsburg’s death, nor did he respond to a request for comment.
Other senators up for reelection in states where the races are expected to be at least competitive have been much clearer.
“This U.S. Senate should vote on President Trump’s next nominee for the U.S. Supreme Court,” Arizona’s Martha McSally tweeted on Friday night.
McSally, who filled the late Sen. John McCain’s seat, is in an intense special election race to keep that seat against Democrat Mark Kelly, the husband of former Rep. Gabby Giffords and a gun control advocate.
In Georgia, Sen. Kelly Loeffler, who is running in a close race for a full term in the Senate after being appointed to finish retired Sen. Johnny Isakson’s term, tweeted that the “the future of our country is at stake.” She added that Trump has “every right” to pick a new justice for the court ahead of the election.
Georgia holds an all-party primary on Election Day, so unlike many of her other Republican colleagues, Loeffler is actually facing her fiercest competition in November from the right. Loeffler is running in a tight race against Rep. Doug Collins, a Trump ally.
“I will support President Trump in nominating a strict constructionist before the election who will protect innocent life and safeguard conservative values,” Loeffler said in a statement to BuzzFeed News on Friday night.
North Carolina Sen. Thom Tillis also called on the Senate to confirm a new justice ahead of the presidential election in a tweet on Saturday morning.
“Four years ago, a Supreme Court vacancy arose under divided government and a lame-duck president as Americans were choosing his successor. Today however, President Trump is again facing voters at the ballot box,” Tillis said. “There is a clear choice on the future of the Supreme Court between the well-qualified and conservative jurist President Trump will nominate and I will support, and the liberal activist Joe Biden will nominate.”
On Friday, before the news of Ginsburg’s death, Alaska Sen. Lisa Murkowski said she would not vote on a Supreme Court nominee until after the election. Murkowski is not up for reelection, but along with Sen. Mitt Romney, she has broken with the party on big issues in recent years, including when she voted against Justice Brett Kavanaugh’s confirmation.
South Carolina Sen. Lindsey Graham, who is facing a close reelection campaign against Jaime Harrison and chairs the Judiciary Committee, previously said that if a vacancy on the Supreme Court became open in the last year of Trump’s term that they would “wait to the next election.” But in May, Graham told Full Court Press that a vacancy in 2020 would be a “different situation” compared to Merrick Garland’s nomination by then-president Barack Obama ahead of the 2016 election.
“I think appointing judges is a high priority for me in 2020,” Graham said in the May interview.
In 2016, when Republicans blocked the nomination of Garland after the death of Justice Antonin Scalia, Graham — a member of what was known as the “Gang of 14,” a bipartisan group that worked to preserve the judicial filibuster in the 2000s — gave a speech about how the maneuver could come back to haunt Republicans and politics more broadly.
“We’re setting a precedent here today, the Republicans are, that in the last year — at least of a lame-duck, eight-year term, I would say it’s going to be a four-year term — that you’re not going to fill a vacancy on the Supreme Court, based on what we’re doing here today,” he said at the time. “That’s going to be the new rule.”
In that speech, he argued that the way the Senate was handling judicial nominations would become more and more polarized and party-line.
“So what does that mean? We’re going to pick the most hard-ass people that we can find,” Graham said in 2016. “And dare somebody in the conference to vote against that person. You’re going to have the most liberal members of your caucus pushing you to pick the most liberal judges cause you don’t need to have to reach across the aisle to get any of our input — and we’ll do the same.”
“So, over time, the judiciary is going to be more ideologically driven because the process in the Senate now does not require you to get outside your own party,” Graham said in 2016.
On Saturday morning, Graham reiterated in a tweet that 2020 is “different.”
Ginsburg’s death has seemed to motivate Democrats, who have flooded Democratic campaigns with donations since the Friday night announcement and McConnell’s letter suggests that he knows that some Republicans are walking a fine line ahead of their reelection campaigns.
“This is not the time to prematurely lock yourselves into a position you may later regret,” McConnell told Republican senators in his letter.