Behind-the-Scenes: How Senate Republicans Rallied Around Promptly Filling the SCOTUS Vacancy

Posted: Sep 28, 2020 10:35 AM
Behind-the-Scenes: How Senate Republicans Rallied Around Promptly Filling the SCOTUS Vacancy

Regular observers of American politics -- cynical conservatives, perhaps most especially -- may have been caught off guard when a majority of GOP Senators promptly lined up behind the mission of filling the Supreme Court seat left vacant by the death of the late Justice Ginsburg.  I, for one, had expected days or even weeks of excruciating drama, characterized by indecisive Hamlet acts by a handful of swing votes, and punctuated by high-decibel spasms and pressure campaigns waged by each side.  Instead, very early in the process, 51 Republican members of the upper chamber announced their intention to move forward with the confirmation process.  This included a retiring bellwether (Lamar Alexander of Tennessee), a highly vulnerable blueish-purple state incumbent (Cory Gardner of Colorado), and the only member of the conference who'd cast a vote to convict the president during the impeachment trial (Mitt Romney of Utah).  

How did all of this come together in such a rapid and low-drama manner?  National Review's Rich Lowry and John McCormack published a excellent piece over the weekend that tracked the behind-the-scenes movements that produced this result, which (barring unforeseen and dramatic events, which cannot be discounted, especially in 2020) suggest that Judge Amy Coney Barrett is a heavy favorite for confirmation.  I strongly recommend reading the entire report, but here are a few key excerpts:

“It’s funny,” a Republican senator says. “A lot of it came together before we got together to talk about it formally.” By the time Republican senators had returned to Washington and gathered together for the first time since Ruth Bader Ginsburg’s death — at a lunch on Tuesday — Mitt Romney had announced he was on board...A White House aide calls the consolidation “a natural reaction,” both to the poor treatment of Brett Kavanaugh during his confirmation and the realization that historical precedent strongly favors a Senate majority’s confirming the election-year nominees of presidents of the same party..."The historical data made it clear that was what the precedent was,” says the senator. “That made it very easy.” Another Republican senator puts it this way: “We all believe in putting conservative judges on the Court and we weren’t going to be duped by the Democratic process argument when at root we all know what the Democrats would do it if they had the chance.”

We emphasized the historical precedent as a core element of our analysis supporting nomination and confirmation, linking several times to this thorough piece by Dan McLaughlin that reportedly made the rounds among Republican Senators. The story goes on to chronicle the key role Senate Majority Leader Mitch McConnell played in keeping his conference together:

McConnell has only three votes to spare, and after news broke of the death of Justice Ginsburg, he moved swiftly to unite the Senate GOP caucus. He released a statement on Friday night saying that a Trump Supreme Court nominee “will receive a vote on the floor of the United States Senate.” In a “Dear Colleague” letter the same night, McConnell made the case that there was historical precedent for confirming a justice and that there was enough time to do so. It took only 19 days, McConnell noted, between the announcement of John Paul Stevens’s nomination and his confirmation to the Supreme Court in 1975. “Over the coming days, we are all going to come under tremendous pressure from the press to announce how we will handle the coming nomination,” McConnell wrote. “For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry. This is not the time to prematurely lock yourselves into a position you may later regret.

Last weekend, McConnell quietly worked the phones. He stays in close touch with the senators who are likely to be on the fence about tough votes, which is roughly the same pool of people each time...He has built relationships of trust with these senators; he knows their political needs and is sensitive to them. He gave Susan Collins, for instance, a lot of running room on the RBG vacancy, and she came out against filling it before the election. McConnell is also tight-lipped about his conversations with his colleagues, giving them confidence that what they tell him won’t become news. “Giving something to the New York Times or the Politico gossip page doesn’t get you the vote of Cory Gardner,” says the Senate watcher. “Having a relationship with Cory Gardner and knowing what Cory Gardner needs gets you the vote of Cory Gardner.” “He’s not focused on winning the news cycle today,” he adds. “McConnell wants to win the court for the next 40 years.”

McConnell has also remained in close contact with President Trump, making clear that Senate Republicans were enthusiastically prepared for the nomination of Judge Barrett. Lowry and McCormack relay that after Senators Alexander and Gardner came out in favor of filling the seat, the only remaining drama (assuming Murkowski and Collins are hard 'no's,' which may not be guaranteed) was how Romney would break. His was considered something of an insurance vote that could conceivably come into play if Sen. Martha McSally were to lose her special election in Arizona, and her Democratic challenger were installed in November. Romney, after expressing initial trepidation in private, came around:

"The decision to move toward confirming a new Supreme Court justice was a “very distinct issue from impeachment,” says the Romney aide. It was about a “long-held principle, long-held priority” and not “a political question of whether or not to stand with Trump.” According to a source familiar with Romney’s thinking, he was initially reluctant about moving toward a vote. But Romney kept his powder dry as he deliberated over the weekend and ultimately came to the conclusion that historical precedent and the Constitution favored a vote.

Having read the piece twice, a major takeaway that stuck out to me was the indispensability of McConnell's leadership, especially on these issues. Conservative writer David Harsanyi evidently had a similar thought: "if Barrett is confirmed, Mitch McConnell will have become one the most effective and consequential conservative politicians — nay, politicians, period — in American history. Call him a hypocrite if you like, but the risk of denying Obama another Constitution-corroding justice in 2016, widely seen as politically self-destructive by Washington commentators, was worth it. His constitutionally kosher position turned into three justices, who, one hopes, will abide by their stated originalist and Scalia-like disposition. Their rulings will long outlast any fleeting partisan squabble."  Harsanyi is right to qualify this with the word if, because in spite of the positive signs, Barrett's confirmation is not assured until a final floor vote has succeeded.  Some preening Democrats, attempting to delegitimize the process and nominee, are refusing to meet with Judge Barrett.  Ironically, this will only speed along her confirmation, with hearings set for mid-October:

It seems entirely plausible that Judge Barrett will become Justice Barrett prior to the election, maybe with just days to spare.  Though McConnell has not formally committed to a pre-election vote, it's increasingly looking like that is the sequence that Republicans prefer, which aligns with my assessment of the relative risks of a pre- versus post-election confirmation vote.  In case you missed it, please read this testament to Barrett's acumen, qualifications and temperament from a liberal law professor at Harvard who clerked with her at the Supreme Court years ago:

I'll leave you with Joe Biden lying brazenly about history, while again refusing to rule out court-packing if he wins:

In reality, via McLaughin, "nineteen times between 1796 and 1968, presidents have sought to fill a Supreme Court vacancy in a presidential-election year while their party controlled the Senate. Ten of those nominations came before the election; nine of the ten were successful...Nine times, presidents have made nominations after the election in a lame-duck session. These include some storied nominations, such as John Adams picking Chief Justice John Marshall in 1801 and Abraham Lincoln selecting Chief Justice Salmon P. Chase in 1864. Of the nine...only one did not succeed...Three of the presidents who filled lame-duck vacancies — Adams, Martin Van Buren, and Benjamin Harrison — had already lost reelection."  

I would not support a lame-duck confirmation vote if Democrats sweep, seizing control of the presidency and Senate in November, for reasons explained here.  But Biden, who has held every conceivably position on these matters (sometimes more than once), simply isn't telling the truth about election year nominations and confirmations.  Ask yourself why he's lying about this matter, in prepared remarks.  And ask yourself why he's now punting on upholding the norm against court-packing, instead pretending it's a giant distraction.