As a matter of pure self-interested calculation, I would expect Donald Trump to try to get a new Supreme Court justice confirmed before the election. That will provide exactly the kind of galvanizing fight that he thrives on, and he has more to gain from giving Republicans something to fight for right now than he does from giving Democrats one more reason to want to beat him in November. Trump either wins reelection (less likely) or (more likely) sets himself up to go out in a blaze of glory — provided that Mitch McConnell can actually deliver the votes.

I can only imagine the conversations going on right now. After the Kavanaugh fiasco, there are many Republicans who would love to rub Democrats’ noses in it. And when Republicans say that the Kavanaugh fight was an open invitation from Democrats to fight dirty on Supreme Court nominations, they won’t be entirely wrong. What are the Democrats going to accuse the nominee of this time? Cannibalism? Inventing the coronavirus?

I find it hard to imagine Trump’s sitting on this one until after the election.

We will now watch a frenetic debate over whether it is “proper” for the Republican Senate to fill that vacant seat before the presidential election.

I must confess that, while I accept that the history is certainly on the side of filling it, I have never found this debate especially meaningful. This is an entirely straightforward question, the details of which are the same at all times within the cycle. In our system, the president gets to nominate a justice, and the Senate gets to decide whether to accept that nomination, to reject that nomination, or, if it likes, to completely ignore that nomination. This was true in 2016, and it is true now. The game requires both players. If they are both willing, the vacancy is filled. If one is not willing, the vacancy remains. And that, ultimately, is all there is to it.

Joe Biden and Lindsey Graham have both flip-flopped on the appropriateness of confirming a new Supreme Court justice during a presidential election year.

While pushing for the confirmation of 2016 Obama-appointee Merrick Garland, then-vice president Biden, who had served as chairman of the Senate Judiciary Committee during George H. W. Bush’s final year in office, said: “I made it absolutely clear that I would go forward with the confirmation process as chairman even a few months before a presidential election.” Biden now opposes moving forward with a Supreme Court confirmation in an election year. 

In 2018, Lindsey Graham, the current chairman of the Judiciary Committee, promised to hold open a Supreme Court vacancy during the final year of President Trump’s first term, a pledge he abandoned in 2019. (Contrary to many reports in the press, Senate majority leader Mitch McConnell did not make the same promise or argument as Graham; McConnell said that when the presidency and the Senate were held by different parties, an election-year vacancy should be held open to let the voters settle the dispute.)

But the flip-floppery of Biden, Graham, and many others doesn’t change the fact that there is a real and clear constitutional standard: The president has the constitutional authority to appoint a nominee when vacancy arises, and the Senate has the constitutional authority to confirm or block that nominee (with or without an up-or-down vote).

That’s it. That’s the constitutional rule governing all Supreme Court vacancies.

Some congressional Democrats and their allies in the press are now threatening to pack the Supreme Court with additional justices if the president and a majority of the Senate now exercise authority explicitly granted to them by the Constitution and fill the current vacancy.

Filling a vacancy now is not the end of the Supreme Court, but packing the Court would be. At that point, there is only really a legislature and executive branch — control of the Court would change every time one party takes control of the House, Senate, and White House.

By packing the Supreme Court to prevent it from possibly chipping away at Roe v. Wade, congressional Democrats would guarantee that Republicans would pack the court at their next opportunity and certainly scrap Roe v. Wade. Is that something Democrats really want to do?

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