It is clear by now that President Donald Trump is going to nominate a replacement for the late Justice Ruth Bader Ginsburg and that, once he does, Senate Majority Leader Mitch McConnell (R-KY) is going to start the confirmation process. What remains unclear, however, is whether McConnell will have enough votes to actually confirm the president’s nominee.
Thus far, two Republican Senators have stated that they are against filling the Supreme Court vacancy created by Ginsburg’s passing. One more could spell trouble.
What did they say?
The Republican Senators who seem to have come out against filling the vacancy are Susan Collins (R-ME) and Lisa Murkowski (AK). Collins expressed her opinion in a statement released on Saturday.
Collins stated that she was neither against President Trump exercising his Constitutional authority to nominate a replacement nor the Senate Judiciary Committee starting the process of reviewing the nominee’s credentials. Rather, she is just against the Senate confirming the nominee before the general election.
“Given the proximity of the presidential election, however, I do not believe that the Senate should vote on the nominee prior to the election,” Collins wrote. “In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.”
The argument by false analogy
Collins based part of her reasoning on what happened in 2016 after the passing of Justice Antonin Scalia. At the time, McConnell, as Senate majority leader, decided to block a Senate vote on then-President Barack Obama’s nominee. Collins believes that the same so-called standard ought to apply, and so does Murkowski.
“I did not support taking up a nomination eight months before the 2016 election to fill the vacancy created by the passing of Justice [Antonin] Scalia,” Murkowski said. “We are now even closer to the 2020 election, less than two months out, and I believe the same standard must apply.”
The problem with such an argument is that the situations are not truly analogous. Back in 2016, the people had elected a Republican Senate to oppose the Democratic President: Now, in 2020, the people have elected a Republican Senate to support the Republican president.
And, furthermore, let’s not be so naive as to think that the Democrats wouldn’t do the same. This was the point made recently by Sen. Lamar Alexander (R-TN), who is in favor of voting on Trump’s nominee. “Senator McConnell is only doing what Democrat leaders have said they would do if the shoe were on the other foot,” he said.
Thanks to a Democrat, only a simple Senate majority, rather than 60 votes, is needed to confirm Trump’s nominee, meaning that three Republican defections would be enough to put up a roadblock. Whether Collins and Murkowski are the first two is unclear: although they say that they are against voting for a replacement prior to the general election, they may still vote to confirm Trump’s nominee should a vote actually occur.
A Republican Senator who is a virtual certainty to vote against confirmation is Mitt Romney (R-UT). But, even should Collins, Murkowski, and Romney all vote against Trump’s nominee, we still don’t know how some of the moderate Democrats will vote.
In short, there are still too many uncertainties to determine whether or not McConnell will have the simple majority needed to confirm Trump’s nominee. Sen. Ted Cruz (R-TX), on Sunday, said that he “believes we will.” At the moment, that’s as good an answer as any.