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Mitch McConnell’s Calculation

There is going to be a SCOTUS vote before the election
September 19, 2020
Mitch McConnell’s Calculation
Senate Majority Leader Mitch McConnell (Photo by Samuel Corum/Getty Images)

Anyone who has observed Senate Majority Leader Mitch McConnell’s career knows there are only two things he cares about: maintaining his Senate majority leader position and confirming judges. That means he’s going to hold a vote to confirm a Supreme Court Justice to fill Ruth Bader Ginsburg’s seat before the election.

In fact—if you are able to escape the liberal screams about unfairness, hypocrisy, and norm-shattering—it’s nearly impossible to conclude that he wouldn’t.

One of the reasons reluctant Republicans came around to supporting Trump in 2016 was his promise to appoint conservative judges to the Supreme Court. That was the deal. You vote for Trump, and you get judges. And Trump made good on those promises twice now with Judge Neil Gorsuch and Judge Brett Kavanaugh’s confirmation.

What makes anyone think those Republicans who lost their dignity defending Trump for the last four years will throw away the chance to get a third Supreme Court justice? They will get that judge because, to many Trump voters, this is the only redeeming thing about the Trump presidency. And this is their last, best chance to win another prize before Trump potentially loses to Joe Biden in November.

Why would they throw that away? Please don’t be naive enough to think that digging up old clips and op-eds of Republicans saying something else some other years will persuade them otherwise. There are only two principles at play: politics and power.

Some people have suggested it would be politically wiser for McConnell to wait until the lame-duck to confirm the nominee and hold out the seat as some carrot to voters. “Vote for Martha McSally, and she’ll get you a conservative judge,” the thinking goes. But, how would Thom Tillis or Lindsey Graham, two other GOP senators up for re-election, explain to their Republican voters on the campaign trail that yes, this is the most urgent, consequential vote we will ever take, but . . . we’ll get to it later. Republicans need a nomination fight now, especially because Democrats are already raising gobs of money overnight in the aftermath of Ginsburg’s passing. The fight is happening with or without them. Might as well take the field.

Most importantly, if McConnell schedules a vote for the Supreme Court before the election, that guarantees his most vulnerable Republicans will have something else to talk about. The hearings will suck valuable time and attention away from both Trump and Biden. Maybe Graham will rev up his outrage engine for some more viral moments. Democratic Vice Presidential candidate Kamala Harris will surely have to take time off the campaign trail to attend to her Senate Judiciary Committee duties, too.

Look at what Susan Collins, who absurdly refuses to say whether she will vote for Trump, did during a recent debate. She is so proud of her Supreme Court votes that she tried to box in her opponent Sarah Gideon over whether she would have supported Chief Justice John Roberts. When Gideon said she would study his record, Collins huffed, “She’s ducking the question.”

If that’s not a big clue that Collins would rather fight on the campaign trail over the Supreme Court rather than Donald Trump, I don’t know what is. She’s practically begging, “Please let me campaign on the Supreme Court. Anything but Trump.” All Trump needs to do is nominate someone more like the straight-laced John Roberts and less like the beer-chugging Brett Kavanaugh and Collins will be on board.

Tillis already is. He fired off a statement Saturday morning that 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 and Cal Cunningham will support, who will legislate radical, left-wing policies from the bench.”

And, keep in mind, we don’t even have a nominee yet.

McConnell couldn’t have scripted it better. This opening not only concerns his favorite issue but may also be a lifeline to his most vulnerable members, who he needs to win so he can maintain his position as Majority Leader. Read the statement he issued last night to members. He explicitly asked senators to not speak on the issue and “keep their powder dry” and explained that Supreme Court nominees have “either been confirmed, rejected, or withdrawn within an average of 25 days from the nomination’s arrival in the Senate.” That’s his timeline. And, there are 45 days until the election.

What do you think McConnell would most like to spend the last stretch of the election calendar talking about? The failed Coronavirus response? Trump’s tweets? Or judges? This isn’t even a question.

McConnell risks all this by waiting until after the election to confirm a judge in a lame-duck session. All the incentives are aligned for McConnell and Trump to act now. Pushing this fight past the election only risks confirming a judge nominated by a President who was just rejected by the voters by senators who have been voted out of office. A Democratic Congress may think about impeaching that judge, rather than let him or her serve out his or her term.

This Supreme Court fight couldn’t come at a better time for McConnell or Trump, especially given that it seems like Trump is on pace to lose. Because this gives him a legacy-setting victory. No matter what happens in November, Trump can always talk about how he changed the future of the court for conservatives. “No one did more for the Court than me,” he’ll say, forever. You can hear him now. “No one ever thought I’d get three seats . . .”

Little wonder the president is pushing full-steam ahead.

On Saturday morning Trump tweeted, “We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!”

Amanda Carpenter

Amanda Carpenter is an author, a former communications director to Sen. Ted Cruz, and a former speechwriter to Sen. Jim DeMint. She was formerly a Bulwark political columnist.