Sep 19, 2020 - Politics & Policy

A court fight for the ages

The flag flies at half-staff as people mourn on the Supreme Court steps last night.

The flag flies at half-staff as people mourn on the Supreme Court steps last night. Photo: Tasos Katopodis/Getty Images

Ruth Bader Ginsburg — feminist icon, legal giant, toast of pop culture — left this statement with granddaughter Clara Spera as cancer closed in: "My most fervent wish is that I will not be replaced until a new president is installed."

The big picture: For all that the nation owes "Notorious RBG" — the hip-hop-inspired nickname she enjoyed and embraced — Republicans are planning to do their best to be sure her robe is quickly filled, despite that last wish, with her ideological polar opposite.

The Trump court, solidified — with an astonishing third court pick in 3+ years — is the more likely outcome.

  • Axios court watcher Sam Baker points out that while both sides are calling it a 4-4 court, what we really have now is a 5-3 court, with Chief Justice John Roberts generally siding with the conservative wing.

Here's what we learned from both parties after the justice's death at 87, from metastatic pancreatic cancer, was announced about 7:30 p.m. ET:

Republicans familiar with the thinking at both ends of Capitol Hill say that every signal points to moving fast:

  • President Trump is expected to nominate a successor within days.
  • Look for Senate Majority Leader Mitch McConnell to push for confirmation during the lame-duck session between Election Day and the inauguration.
  • McConnell would go in the next 45 days if he had the votes. But several Republican senators — including Sen. Susan Collins of Maine, who's in a tough race — want to wait. Some are leery of backlash if the nomination looks jammed through. And McConnell can only lose three.

Jonathan Swan reported last year that when U.S. Appeals Court Judge Amy Coney Barrett of Chicago came up as Trump was picking a successor to Justice Anthony Kennedy, the president said: "I'm saving her for Ginsburg."

  • Trump changes his mind all the time. But Republicans tell us Barrett, 48, a favorite of conservative activists, remains at the top of the White House list.
  • Twitter already calls her "ACB."

Look for Republicans to ignore the precedent they set when they stonewalled Merrick Garland, after he was nominated by President Obama in 2016.

  • Senate Judiciary Chairman Lindsey Graham (R-S.C.), who's in a real reelection race, had said in 2016 that the delay in an election year would be "the new rule": "I want you to use my words against me."
  • But CNN's Manu Raju reports that Graham told him more recently, when asked about moving forward with a Supreme Court nominee before the election: "We’ll see what the market would bear."

Remember that the title of the wily McConnell's memoir is "The Long Game."

  • McConnell issued a statement last night promising: "President Trump's nominee will receive a vote on the floor of the United States Senate."
  • But he also urged Republican senators twice in a "Dear Colleagues" letter to "keep your powder dry," leaving him room to maneuver on timing.

Politico's Tim Alberta — author of "American Carnage," the best modern book on Republicans — says in a smart piece:

  • "[T]here are ways for the famously disorganized administration to intentionally drag its feet ... so that it’s close enough for voters to smell a new Supreme Court justice but not close enough for the Senate to confirm one."

Sen. Ted Cruz (R-Texas) told Sean Hannity on Fox News that it's "critical" a justice be confirmed before Nov. 3, in part because of the possibility of a "constitutional crisis" if there were a 4-4 split over a disputed election outcome.

  • But NBC's Pete Williams said that since the confirmation process averages 70 days, a pre-election vote is "extremely unlikely."
Photo: Tasos Katopodis/Getty Images

Senate Democratic Leader Chuck Schumer, hoping that this election will make him Senate Majority Leader Chuck Schumer, can be expected to fight ferociously against a rocket-docket confirmation.

  • Joe Biden told reporters when he landed in Wilmington last night: "[T]he voters should pick the president. And the president should pick the justice for the Senate to consider.”
  • Hillary Clinton called for a "fierce" response, telling MSNBC's Rachel Maddow that Democrats should "do everything possible to stall and stop whatever McConnell pulls out of his hat."

Howard Wolfson, a Mike Bloomberg strategist who's a veteran of Senate campaigns, writes in his Daily Biscuit newsletter:

  • "The Supreme Court has typically motivated Republicans far more than Democrats. That will absolutely not be the case this election. ... That will be Ruth Bader Ginsburg’s final legacy."

Reporting was contributed by Zachary Basu, Alexi McCammond, David Nather, Hans Nichols, Jonathan Swan and Alayna Treene.

Go deeper: Ginsburg's life ... What they're saying.

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