The whole nature of the 2020 campaign has just changed.
For all her liberal views, one of the most significant legacies of Ruth Bader Ginsburg – via the happenstance of when she died – might be to embed a conservative majority on the US Supreme Court for a generation. Time is short. The Republicans have only six weeks to secure a replacement if they are to be able to go to their voters and claim the achievement of having delivered a Court in the image of that support.
Through most of 2016, Mitch McConnell refused to hear Obama’s nomination, Merrick Garland, for the seat vacated by the death of Antonin Scalia on the basis that nominations should not be made in election years so that the public’s opinion might be represented. It was a notion with barely any precedent then and expect to hear no such scruples from him now.
Together with Trump’s other nominees, Gorsuch and Kavanaugh, the chance to appoint a third relatively young conservative to the Court is an immense opportunity. The other justices would need to split at least 5-1 to tip an opinion against them. Put another way, a 6-3 Court renders much less meaningful the idea of a swing vote. Even if one Justice does vote against type, there’s still a majority there.
Nor is it anything like just a Washington issue. Indeed, for Trump his Court appointments have been perhaps the reddest meat he’s thrown his supporters. Were he to write his own job spec for the position, he’d no doubt favour someone who took a maximalist position on Executive authority. But in this case, social positioning matters more.
To attempt to make and conclude a nomination and appointment within such a short timeframe, with Bader Ginsburg having barely left the building, would be immensely controversial. Politically, that’s the point. A good old political row is just the sort of thing that Beltway journalists understand and find fascinating – and all the coverage of that means less coverage of the mess of the Covid-19 response, the unemployment stats (coming down but still high) or whatever other story Trump might like burying.
That said, to rush a nomination through that fast does require paying a modicum of heed to seemliness. The Republicans don’t have a big majority and they can’t afford more than one or two to break ranks – and senators standing down or representing more liberal or bluer states, or simply who have an independent conscience (and the practical ability the exercise it) do need to be taken into account.
There are already a handful of GOP senators on record as saying they wouldn’t consider a nomination until after election day. Of course, when they said that, there wasn’t a nomination in front of them. Positions can change when the situation changes and intensive lobbying begins.Even so, we shouldn’t assume that just because the GOP has a majority for now, that makes a majority for a rush job on a controversial candidate.
Who Trump picks matters as much as Senate management or the state of the race in, say, Arizona. Indeed, I think that despite the prize on offer, it’s short odds-against that there’ll be a nomination before November 3. Either way though, there will be a big row and that row will change the nature of the election campaign.
It will change some of the issues, it will change the emphasis on the various parts of the president’s job, it will be divisive. Trump will be happy with that.