The only thing I can think of that would have made the Kavanaugh saga more toxic is if the vacancy had involved a seat held by a Democratic appointee.
And the only thing I can think of that would have made that more toxic is if McConnell broke his own rule for Merrick Garland and tried to confirm the new nominee in a presidential election year.
Since American politics is now a massive garbage fire being fed by an endless stream of accelerant, I’m treating Cocaine Mitch’s comments yesterday as an almost divine sign that we’re going to face that exact scenario 18 months from now.
“When you blocked Merrick Garland’s nomination from President Obama, you basically said that we don’t do this in a presidential election year and that we wait until the election and then whoever the people choose, they get to pick the Supreme Court nominee. But what you just said now, is it’s a question of whether or not the party in control of the Senate is different than the president. The question I guess I’m getting to is, if Donald Trump were to name somebody in the final year of his first term in 2020, are you saying that you would go ahead with that nomination?” [Chris] Wallace asked.
“I understand your question. And what I told you is what the history of the Senate has been. You have to go back to 1880 to find the last time a vacancy created in a presidential election year on the Supreme Court was confirmed by a Senate of a different party than the president,” McConnell responded.
The Garland Rule was straightforward: When you have a vacancy on the Court in close-ish proximity to a presidential election, let the voters decide who should fill it. You might dislike that rule because it lets a majority of the public decide the immediate future of what’s supposed to be a countermajoritarian institution (“Trump didn’t win a majority of the popular vote!” liberals cry) but it’s “fair” in the sense that it doesn’t depend on which party controls the White House and the Senate. It’s a bright-line rule. Let the people decide.
Now here’s McConnell, faced with the not insignificant possibility of a new vacancy in 2020, refining the rule. It does depend on which party controls the White House and the Senate. The people don’t necessarily get to decide.
You can try to justify that in vaguely principled terms. “If the White House and the Senate are held by the same party,” you might say, “then the people already decided whom they wanted to oversee the nomination.” Yeah, but Obama fans would say the same thing about the Garland episode in 2016. He was duly elected president in 2012 and the Scalia vacancy happened during his term. The Republican Senate was within its rights to vote Garland down — they were duly elected too, after all — but McConnell wouldn’t even give the squishes like Flake, Collins, and Murkowski an opportunity to vote. He punted the decision to the public because he feared that his own Senate, if afforded an opportunity to rule on Garland, might have ruled in a way he didn’t like.
All he’s doing here is acknowledging how raw the power politics of Supreme Court vacancies have become. What he means to say is “When an opportunity appears to shift the balance of the Court, grab it with both hands and don’t apologize,” but politicians are forever forced to pretend they’re driven by principle even in situations where they know no one believes them. But here’s the thing: I’m not so sure he’ll be able to impose his will on the caucus if a vacancy does open up in 2020. The Kavanaugh war was so wrenching and politically dangerous that it might be too much to ask moderate Republicans to do it again, in the middle of a national election, with a Democratic seat on the line, in clear contravention of a precedent Republicans themselves set just four years earlier. Susan Collins will be on the ballot in 2020. With the left already angry at her over Kavanaugh, do you really believe she’d tempt fate by trying to ram through an Amy Barrett for the Ginsburg seat with the Garland precedent hanging over her head? Would Lisa Murkowski, who ultimately opposed Kavanaugh, go for that? Would Joe Manchin, who’ll be able to point to the Garland Rule and say that he thinks the people of West Virginia and other states should have the final say?
Would Lindsey Graham be willing to vote on a new nominee? He’s everyone’s favorite RINO right now but I remind you that he was asked this question directly just a few days ago, before Kavanaugh was confirmed. We’ll hold the seat open through the election, he said. I was skeptical of that at the time — Republican voters would be enraged if their leaders fumbled away the Ginsburg vacancy — but the more I think about it, the more I wonder if the math simply isn’t there for McConnell. Asking Collins, Murky et al. to break the Garland Rule in order to confirm someone in 2020 would be like asking them to nuke the filibuster for Gorsuch all over again. That was an extraordinary measure but extraordinary measures are feasible when the political waters are relatively calm. They were relatively calm in early 2017: Trump had just been elected, Gorsuch’s record was spotless, they had Harry Reid’s precedent of ending the filibuster for lower-court judges to cite in their defense. The political waters in 2020 will be extremely rough. Trump will be facing a tough campaign; Dems will throw everything they have at the new nominee to protect a “Democratic seat;” the relevant precedent this time will be a Republican one, the Garland episode.
All of this is a long way of saying that if McConnell wants to throw out the Garland Rule in 2020 and confirm a new nominee, he’ll need a few more seats added to his majority this fall. If the Senate ends up as a push, with the GOP holding a two- or four-seat lead, he’ll almost certainly start the next confirmation process in deep trouble in getting to 50 with Collins, Murkowski, Manchin and maybe Graham all opposed to voting on the nominee before the election. The only way around that potentially would be for Trump to nominate the most moderate, inoffensive Republican judge he can find. If he floated someone to the left of Tom Hardiman, say, rather than Amy Coney Barrett, maybe Collins et al. would rethink. But if he did, Republican voters would be angry: What’s the point of filling a vacancy if you’re going to fill it with another Kennedy or O’Connor or (shiver) Souter? Hold it open, reelect Trump, then go for broke. Trump being Trump, he himself probably thinks victory is so assured that McConnell might as well hold it open. He’ll fill it in 2021.
In case the prospect of a 2020 Court fight hasn’t already given you a migraine, bear in mind that Democrats will be favored (maybe heavily favored depending on next month’s results) to retake the Senate that year. The map favors them. That means the choice for Collins and the rest isn’t merely to confirm the new nominee or to hold the seat open until the following year; the choice will be confirming the new nominee while Republicans still have the power to do so or waiting until Chuck Schumer has control of the chamber, in which case he might decide to pay Republicans back for Garland by refusing to hold a vote on any nominees. The seat might stay open for years. What do you do if you’re a RINO and your options are breaking the Garland Rule to confirm someone or acquiescing in having Trump effectively stripped of his power to fill Supreme Court vacancies for his entire second term?