Nothing in 2020 has felt routine, much less expected. Now, the familiar “October Surprise” of presidential elections has appeared before the fall solstice. The unexpected death of Supreme Court Justice Ruth Bader Ginsburg has changed the discussion, calculus, and stakes of November 3. The country’s focus is no longer COVID-19. Despite the most medically and socially advanced society in the world passing 200,000 deaths, more than any other country.
Focus is now on whether conservatives will establish a clear majority on the United States Supreme Court for decades to come. The new majority will upend previously settled law on big business, gun rights, criminal defendants’ rights, immigration, and possibly even a woman’s right to choose. They will reserve rights to the select few at the expense of the many.
The argument that Senate Majority Leader Mitch McConnell blocked President Obama’s nomination of Merrick Garland until after the election and should do the same here is pointless. The modern politician always does what is personally and professionally expedient. This appointment is happening. Her (President Trump has indicated he will nominate a woman) confirmation depends only on how and when McConnell decides to conduct the process.
The average length of time to confirm a SCOTUS appointment is 70 days. The process includes the Congressional Judiciary Committee’s review, background checks, testimony, and Senate debate. There are only 43 days until the election. The Senate has confirmed justices in less time (John Paul Stevens and Sandra Day O’Connor 19 and 33 days, respectively). McConnell appears to have the necessary votes for confirmation. Senator Mitt Romney’s (R-Utah) announcement today that he would do what is both in his and his party’s interest virtually assures McConnell’s ability to obtain a nominee’s quick confirmation. But does he want to?
The Christian right’s support of a dishonest, immoral, womanizing narcissist would seem contradictory. (Disregarding for the moment that many of the individuals, like Jerry Falwell, Jr., who make up the coalition are neither Christian nor right.) The group recognized how to set lasting political policy. The policy is not best set through politicians who are continually changing but through federal judges who serve for life.
In Trump as President, they correctly saw a means to an end. Trump has now appointed over twenty-five percent of the federal bench, two hundred sixteen federal judges, including two Supreme Court justices. Having accomplished a clear Supreme Court majority would not make Republicans vote for Biden. It would, however, negate the urgency for some Republicans to turn out in November for a man they feel is less than competent. But McConnell, a sophisticated political operator, may not be concerned so much with the presidential election as he is with his fellow down-ballot candidates.
Trump’s antics and incompetence on COVID-19 and the related economic crash may not just cost him re-election, but may also jeopardize the Republican Senate majority. In the confirmation process, McConnell likely recognizes an opportunity to garner support for Republican Senators facing tough re-election battles. By holding off on a confirmation vote until after the election, McConnell can drive evangelicals and other supporters to the polls to retain his majority.
He would essentially make the election a referendum solely on the confirmation. While this may or may not ultimately help Trump, his re-election makes little difference to McConnell. After the election with a majority intact, he then has political cover to confirm Trump’s nominee pointing to the support of the electorate as his justification. That is, voters knew a Republican senate majority would confirm the appointment and voted accordingly.
With a Supreme Court and Senate majority McConnell could severely limit a Biden administration’s abilities. Even if Biden wins the presidency and McConnell loses his majority, McConnell can still provide conservatives protection by confirming the appointment after the election. However, Biden, with a majority in both houses, could effect real change. Making Biden supporters’ turnout and Senate votes just as important. Due to the Supreme Court vacancy, this election is no longer about just the presidency but whether or not the Republicans can retain the Senate majority.
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