ruth bader ginsburg

Why Mitch McConnell Will Try to Fill RBG’s Court Seat

Photo: Stefani Reynolds/Getty Images

In the aftermath of Ruth Bader Ginsburg’s death on Friday, I spoke with political columnist Jonathan Chait about the very messy Supreme Court nomination fight ahead.

Ben: Ruth Bader Ginsburg has died. Tremendous legacy aside, her death obviously has momentous political and legal implications. Senate Majority Leader Mitch McConnell has already announced that he will ignore his own made-up precedent not to push through a justice in an election year, and try to do just that. Right now, how do you view the odds of him succeeding and fundamentally reshaping the balance of the court?

Jon: I think the odds clearly favor McConnell filling this seat. The reasons are obvious: They control 53 seats, they only need 50, and previous statements of principle will obviously not bind them. However, there are several factors pushing in the other direction.

It’s not in the interest of Republicans facing election in 2020 to resolve this. Vulnerable Republicans are much better off having the court seat hinge on the outcome of the election. Trump himself might also be better off this way, though I doubt he will be cunning enough to see this. (Social conservatives will push him to fill the seat and he will go along, picking the course of maximal partisan aggression, as he always does.) Roberts himself also stands to lose power. He would no longer be the decisive vote. His only power would be to say something against filling the seat, and I doubt he says anything like that, but it is conceivable.

Ben: It’s true that vulnerable Senate Republicans — of which there are several this cycle — would likely not want to vote on a Supreme Court justice before the election. But most observers have zeroed in on the lame-duck period, between November 3 and January 20. Is there really much of an incentive for any Republican who thinks the Supreme Court is the be-all end-all of the conservative movement to vote no at that point, regardless of whether they just won or lost their contest? (Already endangered senators Martha McSally, Joni Ernst, and Kelly Loeffler have signaled their approval for this tactic.)

Jon: Right, the lame-duck period is another possibility. The dynamic is different. Any defeated Republican senators would have an incentive to vote for the nominee. However, that might seem like a more severe norm violation that could conceivably spark opposition among Mitt Romney, Lamar Alexander, or — I am struggling to come up with another name. You’d need four. Murkowski is already a no, so that means three more no’s are needed. Collins and Graham have previously said they wouldn’t confirm a justice at the end of 2020, though they’d probably just do the hypocritical thing. Ultimately I think the real threat is that Democrats could win back the presidency and the Senate, and add two seats. I doubt that threat would be a deterrent for three more Republicans. But it’s possible.

Ben: Already we see one Senate Democrat, Ed Markey, pushing that forward as a possibility. But would the Joe Manchins and Kyrsten Sinemas of the world go for it?

Jon: I honestly don’t know about Manchin/Sinema. The odds change a lot when you go from 50 to 51, then 51 to 52.

Ben: Do you personally think packing the court to 11 would be the proportional response to McConnell filling this seat?

Jon: I am not completely sure. I think what would justify it is a return to Lochner-style conservatism, where the court becomes a super-legislature striking down laws Republicans can’t defeat in Congress. However, the question is whether they can wait for that to happen, which might be after they lose their dual control of the president and the Senate (both of which, of course, remain currently hypothetical.) In the long run, the reform I think is most legitimate is Pete Buttigieg’s idea of a 15-member court with five Democrats, five Republicans, and five nonpartisans. Buttigieg’s idea was often called “packing,” but it’s not — it’s a reform that would not leave the court permanently in the middle.

Ben: This election already looked like it might cause the kind of chaos we haven’t seen around politics in this country in a long time. How does this huge development add to your sense of the stakes — and which side might be even more primed to vote now, not that they needed the encouragement?

Jon: I think this is overrated. People with a strong commitment to issues vote. The people who sometimes don’t vote pay way less attention to political news.

I think basically everybody who understands the relation between the election and the courts is voting already.

Ben: Do you think any kind of Schumer threat of future action — whether it’s the court-packing or some other major reform — has any bearing on the outcome here?

Jon: I think that threat has some chance of swaying three Republican senators beyond Murkowksi, yeah. Still, we’re probably looking at McConnell winning.

Why Mitch McConnell Will Try to Fill RBG’s Court Seat