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Mitch McConnell Will Fill Any Supreme Court Vacancy That Occurs Before 2021

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Senate Majority Leader Mitch McConnell, a Republican from Kentucky, from left, Brett Kavanaugh, U.S. Supreme Court associate justice nominee for U.S. President Donald Trump, and U.S. Vice President Mike Pence, stand during a meeting at the U.S. Capitol in Washington, D.C., U.S., on Tuesday, July 10, 2018. Senate Republicans are pledging a swift confirmation process that would put Kavanaugh on the bench before the new term opens Oct. 1, and there is little Democrats can do to stop them. Photographer: Chip Somodevilla/Pool via Bloomberg

This is absolutely correct:

If her health takes a turn for the worse and she is forced to step down, however, Senate Republican Leader Mitch McConnell has left no doubt that he’ll move to confirm a Trump-nominated Justice even if the vacancy arises during the 2020 election year. He is choosing disingenuously to distinguish his refusal to begin the confirmation process for Merrick Garland’s nomination by Barack Obama throughout 2016 from a 2020 vacancy on grounds that the Senate and the presidency were controlled by different parties back then. Knowing McConnell and his exultation in the exercise of partisan power, he will greatly enjoy Democratic or mainstream media howling about the hypocrisy of this position.

The only real question is how late in 2020 might Trump and McConnell still be willing and able to fill a SCOTUS vacancy. I’d say it could happen even after election day, assuming Trump is not reelected. Trump already has a pre-vetted list of SCOTUS possibilities, and a well-oiled machine run by the Federalist Society and the Heritage Foundation to finalize choices and generate support for them among conservative activists in and beyond the legal profession. Chief Justice John Roberts was confirmed in just 19 days. With cloture to end a filibuster of a Supreme Court confirmation now requiring a simple majority, Senate Democrats would have to flip four Republican senators (while holding all of their own votes) to block a SCOTUS confirmation so long as the current, 116th Congress is in session–i.e., before January 20, 2021. There are only a few even theoretically winnable Republican senators in the supremely partisan moment that SCOTUS confirmations have become, and even those facing major 2020 challenges are likely to worry more about offending their conservative-base voters than about an adverse public reaction to party-line solidarity.

You remember all of the procedural norms that had to be violated to try to get ACA repeal passed? That would be nothing if a lifetime Supreme Court seat came up. And not only are hearings not a constitutional requirement, the Senate didn’t hold them for more than a century. Nothing in the Constitution prevents a Senate majority from confirming in the afternoon a Supreme Court nomination made that morning. Not only would a Trump nominee be confirmed anytime up to Election Day, as Kilgore says if a Democrat wins in 2020 a nomination made after Election Day but before the new president is inaugurated would go through. Be ready for lots of citations of John Marshall if that happens!

And evidently this would be a disaster. The shift of the median of the Court from Roberts to an even more orthodox Federalists Society goon will be significant, if not as significant as some assume. But it would also make getting wresting away control of the Court from the party that has lost the popular vote in 6 out 7 presidential elections and counting even more difficult. Breyer and Ginsburg had better make it until at least Election Day 2020 or we’re looking at a catastrophe.

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