NEWS
ANALYSIS
With Nothing Else Working, Trump Races to Make a
New Supreme Court Justice the Issue
Even as he presses ahead, some Republicans wonder
whether it would be better to hold a confirmation vote before the election or
start hearings but leave the final vote until afterward.
Peter Baker
By Peter
Baker
Sept. 22,
2020
WASHINGTON
— When news broke on Friday that Justice Ruth Bader Ginsburg had died,
President Trump was just five minutes into a campaign rally in Minnesota and
aides opted not to pass word to him onstage. If he announced the death of the
liberal justice from the lectern, they feared the crowd would cheer.
But cheers
that would have looked unseemly one night were welcomed in another form a night
later as the next rally crowd chanted, “Fill that seat!” To a president lagging
in the polls, the chance to fill a Supreme Court vacancy has become a political
lifeline, a chance to mobilize supporters and talk about something, anything,
other than the coronavirus that has killed 200,000 Americans.
Whether it
will ultimately change the outcome of the campaign is up for debate given that
Democratic voters may be equally energized. But for Mr. Trump, nothing else has
been working and so he has propelled himself, his Republican allies and the
country into a breakneck race to confirm a successor to Justice Ginsburg before
the Nov. 3 election, bulldozing past the precedent his own party set four years
ago in a gamble that the political payoff will outweigh any political cost.
Even as he
presses ahead, Republicans remain uncertain whether it would be better to hold
a confirmation vote before the election or announce the nomination and start
hearings but leave the final decision until a lame-duck session afterward. If
they act before the election, they may lock in a conservative majority on the
court for years. But if they hold off they may give voters on the right greater
incentive to turn out to keep the Senate Republican, ensure Mr. Trump’s
re-election and make it more likely that his pick is eventually seated.
Senate
Republicans have made it clear in the last few days that the votes are there to
confirm a nominee sight-unseen before the election, but Senator Mitch McConnell
of Kentucky, the party leader, has yet to commit to that timetable as he weighs
the pros and cons. “There are different points of view about that,” Senator
John Thune of South Dakota, a member of the Republican leadership, said on
Tuesday.
If they
pursue confirmation in the 38 days between Saturday, when Mr. Trump said he
would announce his choice, and Election Day, they will be trying something that
has never been accomplished before. While plenty of Supreme Court nominees have
been confirmed in presidential elections years, none has ever been approved so
close to the election itself.
The closest
any came were three nominees approved in July of the election year, more than
three months before the voting, and two of them were unopposed and passed on a
voice vote. The last time any seriously contested selection for the court was
rushed through so quickly at any point in the election cycle, counting from the
date of the original nomination, was in 1949.
The White
House does not mind engaging in an argument over ramming through a nominee and
in fact appears to relish it. Kayleigh McEnany, the White House press
secretary, showed up for a briefing on Tuesday with an opening statement
energetically accusing Democrats, rather than Republicans, of busting through
longstanding traditions because some liberals advocate retaliating for an
election-year confirmation by adding more seats to the Supreme Court if they
win the election to offset Mr. Trump’s appointees.
“If you
don’t get your way, Democrats will blow up the system,” Ms. McEnany said. “They
will change the system. They will trample on the Constitution.” In fact, the
Constitution permits changing the number of seats on the court just as it
permits the president and the Senate to confirm a nominee at any point in the
election cycle, but neither has been the norm in modern times.
What Ms.
McEnany did not address at her briefing until asked by reporters was the
pandemic on the day the nation passed the grim milestone of 200,000 killed by
the virus. Washington National Cathedral tolled its bells over the weekend in
memory of the dead and a volunteer organization planted 20,000 American flags
on the National Mall to mark the occasion, but the White House took no formal
notice.
Robert
Jeffress, the evangelical pastor of First Baptist Church of Dallas and a
prominent ally of the president, wrote on Twitter over the weekend that for the
president, the court fight meant that the coronavirus was now “nothing but background
noise” for voters.
“The
Supreme Court fight is hugely helpful to Donald Trump because it reframes the
election,” said Alex Conant, a Republican strategist. “A couple of days ago,
the biggest issue in this election was Donald Trump’s handling of the pandemic.
Now it’s a battle over the Supreme Court.”
Sam
Nunberg, who worked on Mr. Trump’s 2016 campaign, said confirmation of a
conservative justice would increase “turnout of disenchanted faith voters” and
appeal to Catholics in crucial states. “This is going to be a late deliverable,
which combined with a Covid vaccine will be substantive issues for late
deciders,” he said.
But
Democrats said Mr. Trump’s team was overestimating the benefit, which they said
would be offset by their own voters’ anger over the replacement of Justice
Ginsburg, a liberal icon, with a conservative who would work to undo her
lifetime of rulings. Democratic donors chipped in $160 million online through
ActBlue, the leading site for processing digital donations, in the first three
days after Justice Ginsburg’s death.
“Any change
in topic may feel like a relief to the White House compared to Covid, but this
issue is far from a political winner for him,” said Brian Fallon, the executive
director of Demand Justice, a progressive group fighting Mr. Trump’s judicial
nominations. “Democrats are galvanized on the court like we have not seen in
decades.”
With the
future of Roe v. Wade presumably on the line, the confirmation fight will
certainly inject abortion into a race that had not focused on it until now.
Anti-abortion voters have long been a bedrock of the Republican coalition and
often more devoted to casting ballots on that issue than their counterparts.
But polls show the broader electorate supports retaining Roe v. Wade, and
Democrats hope that if the ruling appears to be threatened it will activate
voters who support abortion rights.
Cornell
Belcher, who was a pollster for President Barack Obama, said a court fight
might bring home some wayward Republicans, but at a cost. “The downside is
potentially large and impactful, now and down the road, for Republicans as it
may reinforce a trend that is already emerging in full — further distancing
college white women from the G.O.P.,” he said.
The
question of when to hold a confirmation vote — before the election or after —
is more than tactical. While the White House would never say so publicly, by
pushing to confirm a choice before voters render their judgment on him, Mr.
Trump is effectively conceding that he could lose and therefore it would be
better to fill the seat immediately.
Some of his
Republican allies, most vocally Senator Ted Cruz of Texas, have argued that
they need the extra justice on the court by Election Day to be able to rule on
any disputes that may arise from the November contest, a likely prospect given
the many lawsuits over rules and mail-in voting already in the courts and the
president’s constant assertions that the election is being “rigged.”
Some
Republican strategists said it would make more sense to proceed with hearings
while holding back on a final vote until after the election to let conservative
voters know what is at stake and give them a reward, in effect, for turning
out. The risk would be that if Mr. Trump loses to former Vice President Joseph
R. Biden Jr., the Democratic nominee, it could complicate a lame-duck
confirmation if enough Republicans balk at approving the choice of a president
rejected by the voters during the period before Mr. Biden’s inauguration.
But
Republicans might proceed even then. Asked by CNN if Republicans would approve
Mr. Trump’s nominee even if Mr. Biden is elected, Senator John Cornyn of Texas
did not hesitate. “You mean while we’re still in our term office and President
Trump is?” he said. “Of course.”
Maggie
Haberman contributed reporting.
Peter Baker
is the chief White House correspondent and has covered the last four presidents
for The Times and The Washington Post. He also is the author of six books, most
recently "The Man Who Ran Washington: The Life and Times of James A. Baker
III." @peterbakernyt • Facebook
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