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Timing is everything as McConnell flexes muscle on Trump court pick

NBC News logo NBC News 9/23/2020 Jonathan Allen
Mitch McConnell wearing a suit and tie © Provided by NBC News

WASHINGTON — There's only one principle at work as Republicans here get ready to nominate and confirm a new justice to the Supreme Court: power.

Senate Majority Leader Mitch McConnell, R-Ky., made that clear when he amended the logic he used in 2016 to justify ignoring the appointment of Merrick Garland, who was President Barack Obama's last pick for the Supreme Court. Back then, McConnell said the Senate shouldn't vote on a Supreme Court justice in an election year.

"The American people should have a voice in the selection of their next Supreme Court justice," McConnell said in February 2016. "Therefore, this vacancy should not be filled until we have a new president.” Now, he says that dictum only applies when the president is from a different party than the Senate majority leader.

"It is blatant hypocrisy," Sen. Kirsten Gillibrand, D-New York, said on MSNBC Monday. "Mitch McConnell said let the people decide. He's absolutely full of it."

It may be more that McConnell's true motivations have been revealed. In reality, the confirmation of a new justice to succeed the late Ruth Bader Ginsburg is not about the limited history and precedent he cites, it's not about the sanctity of his institution, and it's not about concepts of consistency and fairness.

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McConnell is exercising raw political power for the purpose of acquiring and maintaining more power. Other explanations are quickly stripped away when matched against facts.

"It's a different scenario," White House deputy communications director Brian Morgenstern insisted on CNN Monday. "This time the Republican majority, which was expanded in 2018 running on confirming constitutionalist judges, is in charge."

For the record, Republicans held the Senate majority in 2016. The difference between now and then is that Obama was a Democrat and Trump is a Republican. Senate Republicans had the votes to stop Garland, and now they have the votes to confirm whomever Trump appoints.

But the new Supreme Court vacancy will require McConnell to place bets.


Video: Romney supports vote on Supreme Court nominee as Senate Republicans push forward (NBC News)

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The real question for him is how to ensure a new justice gets confirmed while he also protects — or enhances — the odds that President Donald Trump is re-elected and Senate Republicans retain their majority.

There's no risk-proof strategy, and the competing interests — including whether Trump's campaign is best served by the heightened intensity of a looming confirmation vote — will require McConnell to place a bet.

Some in his party argue that he should not leave the confirmation to chance by waiting until after Election Day to hold a vote. A party flip in a special election for an Arizona Senate seat could alter the math after the election and before the next inauguration. But many in the GOP see an opportunity to rile up conservative voters by focusing them on a nomination that hasn't yet been decided and pushing it through after the election.

Ron Bonjean, who worked with the Trump White House to shepherd Justice Neil Gorsuch through the confirmation process, said he thinks GOP leaders should "slow this down a little bit" for both political and practical reasons.

"It allows for voters to understand what's at stake," he said, "and it also allows time for the White House and Senate Republicans to rally the votes in order to achieve victory in confirming that nominee."

If the pick is confirmed before the election, Bonjean added, voters may "turn their attention to another issue."

Of course, that could be helpful to Trump or Biden — depending on which side is more energized by it — and it could be helpful to Senate Republicans or Senate Democrats.

In part because abortion rights have been protected by the court since 1973, most of the energy around the most controversial cultural issue has been on the side of abortion opponents. But if the Roe v. Wade decision is directly under threat, Trump or Senate Republicans could face a backlash among constituencies with which they already are struggling — including suburban white women and poorer women whose access to abortion already is limited.

Given McConnell's position, he had little choice but to announce forward motion on a replacement for Ginsburg. Republicans would not have put up with using the power they gave him to choose consistency over a Supreme Court justice.

"It’s about the party in control," Bonjean said. "It’s not about the precedents."

But the timing of an actual vote — before the election or after — creates an inherent tension point between the Senate and Trump. If past is prologue, McConnell will lean toward what he thinks is best for the preservation of the Senate Republican majority. But even after McConnnell advised GOP senators to keep their "powder dry," Trump has shown little interest in waiting. He plans to name a replacement on Saturday, barely a week after Ginsburg's death.

All of that is to say that the vacancy is an opportunity for McConnell, but it also creates an additional layer of political uncertainty.

He chose not to follow the Supreme Court nomination "rule" he made up in 2016, and he will get blamed if his approach backfires. If it works, the criticism he takes for being hypocritical will be salved by another two years as majority leader, a second Trump term and a Supreme Court with a 6-3 conservative tilt.

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