The death of supreme court justice Ruth Bader Ginsburg has upended the US presidential election, just six weeks before polling day. It has also focused attention on a core group of senators who have the power to shape the ideological tilt of the court for years to come.
As the 100 members of the US Senate returned to Washington on Monday afternoon in the wake of Ginsburg’s death, Mitch McConnell delivered a forceful defence on the Senate floor of the chamber’s right to confirm a justice so close to an election.
Dismissing his previous refusal to consider then president Barack Obama’s nominee in 2016 because it was an election year, the majority leader argued that the situation was different because the Senate and White House were now controlled by the same party.
“The historic precedent is overwhelming,” he said, noting that the Senate had “more than enough time” to confirm an appointment.
His words were designed, not only to unequivocally signal his intention to move forward with a Republican nominee, but also to give cover to any wavering Republicans concerned about the ethical and legal justifications for appointing a justice in an election year.
Notably, McConnell did not disclose whether he would schedule a confirmation hearing before the November 3rd election, or during the “lame duck” session afterwards when the current Senate would continue to sit, even if some senators had been voted out.
But there is a growing sense that McConnell, whose party has 53 of the Senate’s 100 seats, will have the votes to expedite the process before election day if he chooses.
Two Republican senators – Susan Collins of Maine and Lisa Murkowski of Alaska – oppose holding a vote before the election. Both have a history of voting against Donald Trump, and Collins faces the fight of her political life to retain her Senate seat in Maine where Trump is unpopular.
But other figures who had previously opposed the idea of endorsing a judicial nominee in election year have reversed course. Lindsay Graham – who as chairman of the Senate judiciary committee will oversee a court confirmation – says he is “dead set” on confirming Trump’s nominee.
Chuck Grassley, who Graham replaced as chairman, also said he would evaluate the nominee “on the merits”, noting that the constitution gave the Senate that authority. Cory Gardner, who is trailing his Democratic opponent in Colorado, where Trump is unpopular, has similarly come into line.
In a blow to Democrats, Utah Republican Mitt Romney – the only party representative to vote against the president during his impeachment trial – said on Tuesday he would support the Republican nominee, all but assuring that McConnell has the votes.
The question now is one of timing. Scheduling a confirmation hearing before polling day would enable Republicans to evade another potential pitfall. Senator Martha McSally faces a tough election fight in Arizona. If her Democratic challenger Mark Kelly wins, he could be seated in the Senate by November 30th because technically the race is a special election. This would narrow McConnell’s majority further.
But rushing through the vote may also have political costs. Confirming a supreme court justice could lessen the “motivation” effect for Republican voters who would no longer have the prospect of a nomination to the court as a reason to go to the polls.
Further, a lengthy – and likely contentious confirmation process if the Justice Brett Kavanaugh hearings are anything to go by – would keep Republican senators in tight races, like Collins and Gardner, away from the campaign trail.
The upside for Republicans is that a Senate hearing would also keep Democratic vice-presidential candidate Kamala Harris, a member of the Senate judiciary committee, in Washington. This could also have the converse effect, however, by giving her a national platform. Her skilful questioning of Kavanaugh during his confirmation hearings significantly raised her profile nationally, and the former prosecutor is likely to take a leading role in the confirmation process.
Democrats say the looming supreme court battle has already motivated their base, particularly younger, progressive voters who may have been unimpressed by Joe Biden but are now concerned about the threat to Roe v Wade, the supreme court ruling that enshrined a constitutional right to abortion.
Certainly, Democrats have seen an influx of cash to the presidential and Senate races since Ginsburg’s death. ActBlue, the main online platform used by Democrats to raise money, reported $160 million(€137 million)in donations in recent days.
In the meantime, however, Trump is moving forward, in lockstep with the Republican Senate leadership, to choose a candidate. He interviewed Indiana-based judge Amy Coney Barrett, who was considered as an alternative to Kavanaugh two years ago, on Monday and is due to announce his pick at the White House on Saturday.
As McConnell weighs up his options, confirmation of a third Trump-appointed supreme court justice seems increasingly inevitable. The only question is timing.