I have written frequently here of the Kabuki theater of Supreme Court nominations. Each Senate actor has a highly scripted role to play. There are different parts to be played by the Senate actors, depending on whether they in the Majority party in the Senate and whether they are in the nominating President’s party. Following the death of Justice Scalia in 2016, the only two possible scenarios both played out – a nominating President with his party in the minority in the Senate (President Obama) and a nominating President with his party in the Majority in the Senate (President Trump) each made a nomination.

Whatever their party, Senators read the assigned scripts for their roles in the first Obama nomination, then exchanged scripts for the second nomination by Trump, often scripts conflicting with those they had read in the past, reading the new scripts with undiminished fervor. Compare Replacing Scalia and Judge Gorsuch and the Filibuster. In the first instance, Mitch McConnell was right and I was wrong. See Confirm Judge Merrick Brian Garland. (In my defense, it must be said that, like everyone but Sen. McConnell, I assumed that Hillary Clinton would win the 2016 election). 

With the death of the iconic Justice Ruth Bader Ginsberg, a President with a Senate majority has a chance to make a significant change in the balance of the Supreme Court. With practiced ease, all of the players have again simply exchanged their scripts from the 2016 election year nomination by President Obama of Judge Merrick Garland. Democratic Leader Schumer and other Senate Democrats then loudly proclaimed the right and duty of the President to make a nomination and the obligation of the Senate to act upon it. Back then, Senate Majority Leader Mitch McConnell argued that action should wait until after the election when “the people have been heard on the nomination.”

That last bit was nonsense. As I noted then in the Boston Herald in Letters: The President’s Pick:

“Justice Antonin Scalia,the Originalist, would have been horrified by U.S. Sen. Mitch McConnell’s assertion that “the American people should have a voice in the selection of their next Supreme Court justice. 

The Constitution provides that a president, elected by electors, shall appoint judges only “with the advice and consent of the Senate,” originally chosen by state legislatures for six-year terms. The Founders were at some pains to keep the voice of the people out of it.“

This time McConnell wants immediate consideration of an election year nomination, arguing that the situation is different when the White House and the Senate are controlled by the same party. McConnell would be less disingenuous to simply say, “When a President of any party gets a shot at naming a Supreme Court Justice, he takes it. When the majority in the Senate wants to stop the nomination, they do. If the majority wants to confirm it, they do.”

Whatever the “fervent wish” of Justice Ginsberg, President Trump will make a nomination in days. Confirmation will proceed. President Trump’s principal difficulty will be the calendar.

When the Senate Democrats under Majority Leader Harry Reid, in a fit of short-sighted impatience, eliminated the 200-year-old filibuster rule from Executive and Judicial Appointments (except the Supreme Court) in 2013, they made it virtually certain that the Majority Republicans would do the same for Supreme Court nominations when it suited them in 2017. 

Time is still a factor though. The election is less than six weeks away.  Even in the absence of a filibuster, Senate procedures for confirmation hearings, committee votes and floor debate, provide ample opportunity for the minority to delay. The procedures won’t even begin until after an FBI background check is completed. The confirmation hearings of Justice Bret Kavanaugh are instructive. During hearings Senators of both parties will be grandstanding. Democrats will be searching through, not just the nominee’s career, but her entire life. There’s always the chance her high school yearbook will reveal her to be a party girl.

It seems more likely that a vote will not occur until after the election. Indeed this may even be the result that Trump prefers, as he would then have his nominee effectively serving as an additional running mate, firing up his voters. 

A vote after the elections presents interesting possibilities. If Trump wins, there shouldn’t be much problem, although, if the Democrats capture the Senate, you may be sure there will be calls against proceeding with a “lame duck” Senate. If Trump loses, the Democrats will be even more vocal but Republicans would be even more likely to proceed with their majority intact. In either case, nervous Republicans up for re-election this year like Susan Collins of Maine would be free to vote for the nominee, either as a safely re-elected Senator or a “lame duck” with nothing to lose. In any case, a post-election vote is even more likely to confirm the nominee.