With All Eyes on the Vacancy Ruth Bader Ginsburg Leaves Behind, Washington Readies for an Unprecedented Fight

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In one of my former jobs, we had an unofficial list of analogies that we simply didn’t use. Political copy didn’t talk about the upcoming “battle” or any “fights to the death” or efforts to “torpedo” legislation. There were, after all, Americans dying on real battlefields and dodging live munitions. Politics, went the honorable thesis, was merely an argument. We didn’t cheapen the service of men and women fighting to stay alive in combat zones by comparing what professional politicians and their lackeys did while wearing million-dollar wardrobes. It was a responsible way to keep what happens inside the Washington Beltway in perspective.

But as the nation considers a successor for the late Supreme Court Justice Ruth Bader Ginsburg, we might want to find a middle-ground between run-of-the-mill political disagreements and the late-campaign brawl that Washington has teed up. What we’re about to see in the nation’s capital — and, some worry, in the streets around this country just six weeks from Election Day — will make President Donald Trump’s impeachment earlier this year look quaint. (And, yes, President Donald Trump’s impeachment trial was really this year, in case that distant history has been forgotten.)

In the hours after Ginsburg’s passing on Friday, Senate Majority Leader Mitch McConnell announced that the Senate would, in fact, take-up a nomination. In Republican circles, it was a moment that could tilt the judiciary to their causes for a generation — and goose a base that may be anemic. Not since deeply conservative Clarence Thomas followed civil rights icon Thurgood Marshall on the bench might the heir stray so far away from the predecessor. The stakes are as high as they’ve ever been, as the Supreme Court could end up with a 6-3 conservative majority based on an eleventh-hour nomination made by a President who, if polls prove accurate, may lose to former Vice President Joe Biden on Nov. 3 and be relegated to one term.

There’s still a lot we don’t know. Trump has said he would nominate a woman to replace Ginsburg, an octogenarian who became a liberal celebrity in her 70s as “The Notorious R.B.G.” Earlier today, Trump said the announcement would come on Friday or Saturday. Typically, these things take about two months to wrap up. That means it’s possible for vetting and courtship and horse-trading to start now, a confirmation hearing to start around Election Day, with a final Senate vote to follow.

Gnashing, recrimination and mobilization has followed the quick turn of events among Democrats. The party leadership appears ready to oppose anyone put forward this close to an election, especially given how McConnell treated the unexpected election-year death of Supreme Court Justice Antonin Scalia in February of 2016. At that time, when a Democrat was in the White House and Republicans controlled the Senate, McConnell said it was most prudent to wait for voters to decide if they wanted a unified or divided government to fill the role. It was March when President Barack Obama nominated Merrick Garland to fill Scalia’s spot; the Senate refused to grant Garland a hearing.

Now? It’s unified Republican control of the White House and the Senate, which has the power to confirm or reject any President’s nominee for the court. Using heavily footnoted-but-factual logic, McConnell is using his mastery of Senate history and procedure to say the moment is different. Democrats are screaming about hypocrisy, but they aren’t likely to sway McConnell with that cadence. After all, McConnell used precedent to deny Obama a third Supreme Court seat in 2016 and may use the same precedent to give Trump his third.

In the hours after Ginsburg’s death on Friday, McConnell circulated a note to his fellow Republicans, a regular communique that is short-handed by its first words: “Dear Colleague.” The note is as much a messaging reminder to his like-minded members as a masquerading press release that is usually leaked within minutes of being sent. In this latest missive, McConnell urged his pals to “keep your powder dry.”

Ginsburg’s public memorial will be Wednesday and Thursday at the Supreme Court, and she will lie in state at the Capitol on Friday. Trump and McConnell are likely to hold off on any next steps until the body is at least in the ground over at Arlington National Cemetery.

Following Ginsburg’s funeral, Trump is expected to introduce the country to his nominee, likely from the White House. Traditionally, the nominee then makes her way to one-on-one courtesy meetings with key members of the Senate who will have a say in her future. Those are often more than photo-ops; they are the private sessions where nominees give assurances to questions that don’t necessarily need to be answered in a public forum. Those sessions now may end up being held via Zoom, or scrapped altogether.

Even so, none of this happens quickly. Of the eight remaining members of the court, the gap between their public nomination and the first day of their confirmation hearing in the Senate was 59 days. We currently stand at 43 days until Election Day and counting. None of the current justices were confirmed that quickly; Justice Sonia Sotomayor had the speediest and the first day of her confirmation hearings was 49 days after she was announced. The 117th Congress begins on Jan. 3, 2021 — 104 days from today.

Complicating McConnell’s calculation: at least two Republicans are against doing anything until after the election. That gives McConnell a buffer of just two other potential defections to have the majority he needs to push the nominee through. That number falls to one should Sen. Martha McSally lose her campaign in Arizona, where state rules in that special election would seat the winner in November. It’s probably safe ground for McConnell. But there’s no telling these days.

All of which suggests there is a calendar in which Trump announces his choice, the Senate starts to take the temperature of the nominee in public and in private, and then voters cast their ballots before the Senate takes action. It’s very likely that the Senate as it stands now returns to Washington after Election Day — with some of its members likely packing their office and leaving Washington in defeat — to consider the nomination. Trump’s fortunes may still be uncertain, as well. But Senators still have their votes until January. A lame-duck confirmation to a lifetime appointment would be shocking in normal times. In 2020, it may just be the latest curveball. A debate? For sure. A battle? Maybe.

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