WASHINGTON – A legal and political earthquake hit the nation’s capital precisely four years ago when Supreme Court Associate Justice Antonin Scalia died on a hunting trip in Texas. President Barack Obama was poised to nominate his successor and give the court its first liberal majority in decades.
It didn’t happen, of course.
Within hours of Scalia’s death on Feb. 13, 2016, Senate Majority Leader Mitch McConnell, R-Ky., vowed to keep the seat open until the presidential election in November. He made good on that pledge, and the vacancy remained for 14 months, until President Donald Trump filled it with Scalia acolyte Neil Gorsuch.
Fast forward to 2020.
If a vacancy were to occur this presidential election year – with the staying power of 86-year-old Associate Justice Ruth Bader Ginsburg, a four-time cancer survivor, a perpetual subject of speculation – Democrats and liberals will say it should remain open through the November election.
“It’s going to be very hard for Republicans to argue that it’s appropriate to consider a Trump nominee in 2020 with a straight face,” says Brian Fallon, executive director of the liberal advocacy group Demand Justice. “We’ll be ever closer to the election.”
But with both the White House and Senate in Republican hands, McConnell has said the 2016 precedent does not apply. He’s vowed to confirm as many federal judges as possible.
“My motto for the year is ‘leave no vacancy behind,'” McConnell told conservative radio talk show host Hugh Hewitt Tuesday.
Such a doomsday scenario for liberals could give conservatives a 6-3 hold on the high court – solidifying their majority, perhaps for decades to come.
McConnell’s reasoning works this way: Democrats would have blocked a Republican president’s nominee in 2016 if the tables were reversed, and they would confirm a Democratic president’s nominee now.
“They can whine about this all day long,” the Kentucky Republican said in September. “But under the Constitution, there is co-responsibility for appointments. The president makes the nomination, and the Senate confirms. We are partners in the personnel business, up to and including the U.S. Supreme Court.”
McConnell’s partisan muscle portends a ferocious battle this year if a seat falls vacant. Ginsburg, who turns 87 next month, has overcome colon, pancreatic and lung cancers in 1999, 2009, 2017 and 2018. The next oldest associate justice is 81-year-old Stephen Breyer, another member of the court’s liberal minority.
Conservatives who have thrilled at Trump’s high court selections of Gorsuch and Brett Kavanaugh, as well as the Senate’s confirmation of more than 150 lower court judges in three years, are thirsty for more.
“This issue is a really, really, really important one for the Republican base,” says Leonard Leo, an outside adviser to the White House on judicial nominations who is co-chairman of the conservative Federalist Society. “We have a sitting president. We’re not going to govern with both hands tied behind our back.”