WASHINGTON — As he relaxed on a white sofa during a public forum in 2018, Senator Lindsey Graham of South Carolina swore up and down that, if there was a Supreme Court vacancy in the last year of President Trump’s term, he would want to wait until after the election to fill it.
“Hold the tape,” he said of the event’s video.
Then on Saturday, with seven carefully worded tweets, Graham, the powerful Republican chairman of the Senate Judiciary Committee, reversed himself and fell in line with his party’s effort to quickly install another conservative on the high court in the coming weeks.
I stand by what I said in Jan. 2019: Harry Reid & Chuck Schumer changed Senate rules to try and stack the courts for Obama. Now it's coming back to haunt them as I predicted. I'm dead set on confirming @realDonaldTrump’s nominee. If you stand with me: https://t.co/MYF6qgyjdI pic.twitter.com/lsejlSs0QQ— Lindsey Graham (@LindseyGrahamSC) September 19, 2020
Buttressed by senators like Graham, President Trump and Senate majority leader Mitch McConnell said they have every intent of filling the vacancy left by the death of Justice Ruth Bader Ginsburg quickly. They are steamrolling past the cries of hypocrisy from Democrats who say the move flouts a standard set by Republicans themselves four years ago when they refused to even take up President Obama’s nominee for an election-year Supreme Court vacancy, declaring that the electorate should weigh in first.
On Saturday night, Trump told a rally in Fayetteville, N.C., that he would nominate a woman this week, setting up an acrimonious political battle that could cement a conservative court majority for decades and shape the nation for generations to come. The crowd chanted, “Fill the seat,” and Trump suggested his campaign should make T-shirts with the slogan.
He has vetted picks left over from his last nomination process who are ready to go, including federal Judge Amy Coney Barrett, 48. “I think the process can go very very fast,” Trump told reporters Saturday.
But his success will ultimately depend on whether a handful of Republican senators decide, like Graham, break with their past positions and join the ugly partisan fight in the six weeks before the election.
“There’s no reason why the Senate couldn’t confirm Trump’s nominee in November, December, even January regardless of the outcome of the election,” said Alex Conant, a Republican strategist who worked on Senator Marco Rubio’s presidential run. “The question just becomes: Do they have the votes?”
Some Republicans have already signaled they won’t vote to confirm a nominee this year. On Saturday, Maine Senator Susan Collins, who is facing a tough reelection fight, said she believed the next justice should be nominated by the winner of November’s election. Shortly before Ginsburg’s death was announced on Friday, Lisa Murkowski of Alaska told a reporter she would not vote to confirm a new justice before the election because voters need to weigh in. Murkowski restated her position Sunday.
That means McConnell can afford to lose only one more Republican senator from his slim majority if he wants to confirm a new justice before Election Day — and he has other members who are facing uphill reelection fights similar to Collins, or who have shown a tendency to buck the party in the past, like Murkowski, to worry about.
In a letter to the GOP caucus on Friday night, McConnell urged Republicans who are on the fence to “keep your powder dry” and not announce whether they would vote to confirm a Trump-nominated justice before the end of the year — a sign that he has more work to do. McConnell explained his willingness to confirm a Trump nominee now, but not Obama’s nominee four years ago, federal appellate Judge Merrick Garland, by pointing out that the Senate hasn’t confirmed the nominee of an opposite party’s president during an election year since 1888.
Still, McConnell has not specified whether a vote would come before the Nov. 3 election, or after, in the so-called lame duck session before new senators are seated in early January.
The timing could have ramifications for the election, as well as for McConnell’s margin of error, since Mark Kelly, the Arizona Democrat who is favored to beat Republican Senator Martha McSally in a special election on Nov. 3, could be seated as early as Nov. 30 if he wins because he would be filling the rest of a vacated term.
If McConnell holds a vote before the election, he might have a better shot at confirming the justice, but he will also be forcing vulnerable Republican senators to take a vote that could endanger their reelection efforts — and his majority with it.
“This is a deeply troubling vote to have to take in the final weeks of an election,” said Ryan Williams, a Republican strategist.
On Saturday, Democrats were assembling a menu of procedural options to use to slow the proceedings. But they know their only real option lies in persuading colleagues from across the aisle to buck their party’s leaders.
“The Senate is split 53-47 — just four senators can stop this latest travesty, and no amount of pressure is too much pressure,” said Senator Ed Markey of Massachusetts in an interview. “They need to see it and feel it and hear it every single day before Nov. 3.”
The Republicans most likely to feel that pressure are those facing reelection in Democratic or swing states, such as Cory Gardner of Colorado, or senators with a bit of a maverick reputation, like Mitt Romney of Utah, who was the lone Republican to vote to convict Trump after his impeachment trial. So far, both senators have offered condolences to the Ginsburg family, but no clues as to their positions on replacing her.
Gardner could face blowback from more moderate voters if he backs an anti-abortion nominee like Barrett, but rebuffing Trump would likely put him in even more political peril, even though the president is unpopular among Coloradans overall.
“They’ve run the math nine different ways and the president’s god-like popularity with the base he just simply cannot distance himself” from, said David Flaherty, a pollster in Colorado for the Republican-leaning Magellan Strategies. “I’m sure Cory Gardner will go along with anybody and support the nominee whoever the president puts out.”
That’s likely the calculation made by Republican Senator Thom Tillis, who faces a tight reelection battle in North Carolina, where Trump has also been trailing in the polls. Tillis said in a statement Saturday he would support Trump’s nominee to prevent Democratic nominee Joe Biden from nominating a “liberal activist” instead.
Romney has shown concern about the reputation of the Senate, which could make a rushed hearing in the final days before an election less attractive. But he’s also a strong supporter of conservative judges — an issue that binds even Trump’s Republican critics to the president.
“I do think that Senator Romney does want to replace Ruth Bader Ginsburg with a conservative justice, the question is: What does he think the process should be?” said Williams, a former aide to Romney’s presidential run. “I don’t know at this point.”
The picture for Collins in Maine is entirely different. The moderate, whose office was bombarded by clothes hangers sent from pro-choice voters during the 2018 confirmation hearings for Supreme Court Justice Brett Kavanaugh, is seizing on the chance depict herself as independent, since she is down in the polls and many of her constituents are still smarting over her vote to confirm him.
"In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd,” Collins said in a statement Saturday.
“This position that she’s taking I think it will be very helpful to her because I think it reminds people in Maine what it is that they’ve always liked about her — that she’s not a party stooge by any stretch of the imagination,” said Kevin Raye, who was chief of staff to former Maine senator Olympia Snowe.
The battle will likely match the intensity of that over Kavanaugh, when protesters pounded on the doors of the Senate, sent senators hangers to signify back-alley abortions, and chained themselves to office buildings. A liberal group, Demand Justice, has pledged to spend $10 million opposing Trump’s pick, while the conservative Judicial Crisis Network has vowed to match them on the other side.
In a private call on Saturday, Senate Democrats vowed to dial up the pressure, linking the Supreme Court — which has long animated Republican voters — to the issues that drove the party’s success in the 2018 midterms, like the future of the Affordable Care Act. The court is set to hear a challenge to Obama’s signature health care law soon after the election.
But at least Markey wants to leverage another threat: that, if Democrats win the presidency and the Senate, they will abolish the filibuster and add more justices to the Supreme Court. It’s a threat Biden has not yet embraced.
“In the face of Republican hypocrisy and corruption,” Markey said, “we must use all the tools at our disposal.”