On The Trail: Battle over Ginsburg replacement threatens to break Senate

The coming battle to fill a seat on the Supreme Court left vacant by the death of liberal Justice Ruth Bader GinsburgRuth Bader GinsburgSecond gentleman Emhoff acts as public link to White House Former colleagues honor Reid in ceremony at Capitol Congressional Progressive Caucus backs measure to expand Supreme Court MORE threatens to set the Senate on the path that would radically and acrimoniously change what was once the world’s most deliberative body.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnell​​Democrats make voting rights push ahead of Senate consideration Hogan won't say if he will file to run for Senate by Feb. 22 deadline Voting rights, Trump's Big Lie, and Republicans' problem with minorities MORE (R-Ky.) waited less than two hours after the court’s announcement of Ginsburg’s death before declaring he would hold a vote on President TrumpDonald TrumpSanders calls out Manchin, Sinema ahead of filibuster showdown Laura Ingraham 'not saying' if she'd support Trump in 2024 The Hill's 12:30 Report: Djokovic may not compete in French Open over vaccine requirement MORE’s eventual nominee, a pronouncement as predictable as the Democratic howls of hypocrisy that followed.

The decision is especially politically charged after McConnell’s equally immediate declaration that the Senate would not approve President Obama’s nominee to fill Justice Antonin Scalia’s seat after the conservative icon died just less than 10 months before Election Day.


Ginsburg’s death 46 days before an election in which both the White House and the Senate majority are in the balance is an explosive addition to an already potently partisan time. Neither side seemingly has either the incentive or the ability to de-escalate.

Senate Democratic Leader Charles SchumerChuck SchumerKelly takes under-the-radar approach in Arizona Senate race Hundreds attend mass funeral for victims of Bronx apartment building fire Romney: I never got a call from White House to discuss voting rights MORE (N.Y.) warned Saturday that nothing is off the table if McConnell pushes to quickly replace Ginsburg with a Trump nominee. The options he would consider, if Democrats reclaim the Senate majority and former Vice President Joe BidenJoe BidenMacro grid will keep the lights on Pelosi suggests filibuster supporters 'dishonor' MLK's legacy on voting rights Sanders calls out Manchin, Sinema ahead of filibuster showdown MORE wins the White House, would fundamentally reshape a chamber that once prided itself on its reverence for tradition and history.

Progressives and activist groups have a long and growing wish list. They are keeping a whip count of Democrats who would vote to end the filibuster, and they want senators to expand the size of the Supreme Court and to nominate and confirm as many liberal judges to lower courts as Trump and McConnell have. 

They also want to admit new senators from Puerto Rico and the District of Columbia, four members who would likely expand the Democratic majority.

In conversations with 10 current and former top Senate staffers, few could envision a path back to the statesmanlike serenity of a bygone era.

Most expect McConnell to try to move forward with a Trump nominee, who would probably be confirmed unless several Republican senators mount unlikely defections. 


So far, Sens. Susan CollinsSusan Margaret CollinsVoting rights, Trump's Big Lie, and Republicans' problem with minorities More than 30 million families to lose child tax credit checks starting this weekend Sinema scuttles hopes for filibuster reform MORE (R-Maine) and Lisa MurkowskiLisa Ann Murkowski​​Democrats make voting rights push ahead of Senate consideration Clyburn says he's worried about losing House, 'losing this democracy' The fates of the 10 House Republicans who voted to impeach Trump MORE (R-Alaska) are the only GOP senators to argue that a confirmation vote should be put off.

Whether McConnell holds the vote before November’s elections, to fire up conservative voters, or after, to protect vulnerable members up for reelection this year, he and the rest of the Senate GOP caucus will face enormous pressure from conservative media and voters to confirm anyone Trump chooses.

McConnell, who values Republican control of federal courts over any policy issue, would almost certainly hold the vote even without external pressure.

Senate Democrats are facing their own pressures from supporters who want fundamental and drastic change. Hours after Ginsburg’s death, Democratic groups led by former Obama staffers and Brian Fallon, a former top aide to Schumer, said they would spend tens of millions of dollars on pressure campaigns against a Trump nominee.

If Biden wins and Democrats take back the Senate majority, a very real possibility in 2020, Schumer’s team would have to move quickly to make fundamental reforms to the Senate, because no majority is ever permanent.

Eliminating the filibuster, attempting to pack the Supreme Court or seeking to add Puerto Rico or Washington, D.C., is no sure thing given divisions among Democrats. But few believe they would be able to resist amid activist rage at Republicans replacing a liberal lion with a conservative nominee.

Those changes will in turn enrage the Republican base. When Republicans reclaim the majority — no matter if it is two years, or four years, or 10 years down the road — the party’s leadership will feel their own pressure, and the right, to take the most drastic steps they can to change the course of American history.

Senate leaders can pull back from the impending abyss by exercising calm and restraint.

But they have virtually no incentive to do so.

Tension in the Senate has been rising for decades as bipartisan and nonpartisan traditions have fallen away. Democrats and Republicans will point to different moments as catalysts — the GOP’s decision to target Senate Democratic leader Tom Daschle for defeat in 2004, or Daschle successor Harry ReidHarry Mason ReidAfter the loss of three giants of conservation, Biden must pick up the mantle Photos of the Week: Voting rights, former Sen. Harry Reid and snowy owls Black Democrats hammer Manchin for backing filibuster on voting rights MORE’s decision to eliminate the filibuster on some nomination votes, or Republican leader McConnell’s refusal to allow a vote on Obama’s choice to replace Scalia.

McConnell, a practitioner of power politics, has worked with Trump to cement conservative control of the courts. The Senate that once changed America through legislative compromise has, for the last several years, been little more than a confirmation factory. McConnell will not pass up the chance to reshape the Supreme Court for a generation to come.

The Senate is still not the same kind of body as the larger and more rambunctious House. Members of the minority have more power in the upper chamber than in the lower.


But it has also been transforming into something closer to a slimmed-down version of the House, as rules changes implemented by Republicans and Democrats undercut the chamber’s tradition.

Fewer members even remember the guard rails that once maintained bipartisan comity; only 15 members first arrived in the Senate before 2000, and 59 of 100 senators have arrived since 2010.

In the midst of a hyper-partisan election cycle, at a time when both parties need to maintain the fervent enthusiasm of their base, the coming fight over Ginsburg’s seat is the political equivalent of a hand grenade. Now more than ever, neither McConnell nor Schumer have any reason to stop what has become a partisan death spiral. 

On The Trail is a reported column by Reid Wilson, primarily focused on the 2020 elections.