Andy McCarthy points to a wrinkle that seems to diminish the likelihood the Senate will confirm President Trump’s selection to replace Ruth Bader Ginsburg, in the event that Joe Biden wins the election. Right now, Republicans hold the Senate by a 53-47 margin. This means that a nominee can be confirmed even if three GOP Senators refuse to go along. Barring exceptional circumstances, there would have to be four defectors to defeat the nomination.
However, one member of the GOP majority, Martha McSally, holds her seat by virtue of being appointed to replace John McCain. Under the rules, if McSally loses her election, she could be replaced before the end of November.
McSally is likely to lose. She trails Democrat Mark Kelly by 6 to 7 points in the poll averages. Kelly, a former astronaut, is the husband of shooting victim Gabby Giffords.
If McSally loses, once she is replaced three GOP defectors would be enough to defeat the nomination. Sens. Collins and Murkowski are virtually certain to defect. I doubt that all other Republican Senators would vote to confirm if Trump is a lame duck.
Mitt Romney, for one, might well vote against the nominee. Right now, his defection wouldn’t sink her. With McSally replaced by Kelly, it would.
Thus, unless Trump defeats Biden (or McSally pulls out a victory), the windows for confirming a nominee probably are only (1) before the election or (2) in the few weeks just afterwards. The calendar plus the electoral concerns of endangered incumbents like Cory Gardner conspire against confirmation pre-election. The optics of a lame duck Senate rushing to confirm the nominee of a lame duck president might well deter Republicans from acting in the few weeks following the election.
During that period, we might not know who will be declared the winner of the presidential race. Such uncertainty probably wouldn’t help in a confirmation struggle.
Kelly won’t be seated until the outcome of the Arizona race is known. However, Kelly’s margin may be such that we will know early in November that he won.
The bottom line, I think, is that Trump is probably going to have to be reelected to have his third Supreme Court nominee confirmed. For conservatives, there is little, if any, consolation in the fact that it would be quite unusual for a one term president to put three Justices on the Supreme Court.
UPDATE: A reader says I’m missing the fact that any GOP Senator who isn’t fully on board with confirming the nominee will have no future in Republican politics. It wouldn’t be the first time I missed something.
However, after the election, some of these Senators are going to be focused on a future at a D.C. law firm or in corporate America, not a future in politics. They will be concerned with how the D.C. establishment and maybe their kids and the mainstream media regard them — not with how the Republican base does. Recall how Jeff Flake behaved once he realized his political future was over.
Before the election, a vote on the nominee will be a lose-lose proposition for some GOP incumbents facing a difficult election. Vote no, and lose conservative support. Vote yes, and lose the support of swing voters, in some states anyway. (So far, polls suggest that voters favor having the winner of the election pick the next Justice.)
I’m not sure Mitch McConnell will want to force these Senators to vote. His overriding concern is always with maintaining a majority.