In Washington, grief yields quickly to calculation. The announcement of the passing of Ruth Bader Ginsburg, the Supreme Court Justice and epic figure in American legal history, came in the early evening on Friday. This led to two simple questions that are now preoccupying the Capitol: Can President Trump win confirmation for Ginsburg’s successor before the end of his term? If so, who will it be?
The broad outlines of the situation are already clear. Mitch McConnell, the Senate Majority Leader, announced within hours of Ginsburg’s death that he will make sure that a Trump nominee gets a vote in the Senate this year. The hypocrisy of his position is breathtaking. Antonin Scalia died on February 13, 2016, nine months before that year’s Presidential election. On that day, McConnell said that he would not allow a hearing or a vote on a nominee from President Barack Obama, because the next President should be allowed to make the choice. McConnell and his Republican colleagues were as good as his word, and Merrick Garland, Obama’s nominee, never received a hearing or a vote. Now, of course, the Presidential election is less than two months away, and McConnell has nevertheless vowed to jam through Trump’s nominee.
Still, McConnell faces a genuine time crunch. Ginsburg died forty-five days before Election Day. It took eighty-nine days for Brett Kavanaugh to be confirmed after he was nominated. (It took sixty-five days for Neil Gorsuch to be confirmed, eighty-seven for Elena Kagan, and sixty-six for Sonia Sotomayor.) Yet Democrats have few procedural tools at their disposal to delay the process. Specifically, under the Senate’s rules, the opposition party has the right to delay a vote in the Judiciary Committee for a week; and it has the right to insist on at least thirty hours of debate on the Senate floor before cloture—that is, a final move to a vote. So it does seem procedurally possible for McConnell to push through a nominee, either before Election Day or during the lame-duck period. [Continue reading…]