The Supreme Court vacancy caused by Justice Ruth Bader GinsburgRuth Bader GinsburgProgressives see Breyer retirement as cold comfort Documentary to be released on Gabby Giffords's recovery from shooting The Hill's 12:30 Report - Presented by Facebook - Breaking: Justice Breyer to retire MORE’s death has caused a political crisis. Republicans, eager to cement control of the court, will want to confirm President TrumpDonald TrumpNorth Korea conducts potential 6th missile test in a month Kemp leading Perdue in Georgia gubernatorial primary: poll US ranked 27th least corrupt country in the world MORE’s nominee for the position. Democrats, still angry about Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellSchumer vows to vote on Biden Supreme Court pick with 'all deliberate speed' It's time for 'Uncle Joe' to take off the gloves against Manchin and Sinema Democrats should ignore Senators Manchin and Sinema MORE’s (R-Ky.) refusal to allow a vote on President Obama’s nomination of Merrick GarlandMerrick GarlandProgressives see Breyer retirement as cold comfort The names to know as Biden mulls Breyer's replacement Are the legal walls closing in on Donald Trump? MORE to the seat created by the death of Justice Antonin Scalia, will do everything possible to keep the seat open so that it can be filled by Democratic nominee Joe BidenJoe BidenNorth Korea conducts potential 6th missile test in a month Clyburn predicts Supreme Court contender J. Michelle Childs would get GOP votes Overnight Defense & National Security — US delivers written response to Russia MORE if he wins the election.
The Republicans control both the presidency and the Senate and therefore have the ability to fill the seat. Purely as an exercise of political power, however, whether they in fact fill the seat will likely be determined by the outcome of the November election on the presidency and on control of the Senate.
Republicans likely will not fill the seat if Biden wins the presidency and if Democrats win control of both houses of Congress, because Democrats would be in a position to pack the court and otherwise retaliate for what they see as the theft of the Garland seat. In all other scenarios, Republicans are likely to fill the vacant seat during the lame-duck session of Congress that will follow the election.
As an initial matter, it is almost certain that Trump will nominate someone – most likely Amy Coney Barrett or Barbara Lagoa – to fill the vacancy. There are no political downsides for him to do so.
McConnell likely will not bring the vote to the floor before the election, because doing so would place several Republican senators who are up for reelection in danger. He still has plenty of time to bring the nomination to a vote in the lame-duck session. Look for Republican senators to talk about not voting until after the election, but to carefully not say anything about holding off until after inauguration.
What happens next will depend on which of the following four scenarios unfolds:
Scenario 1: Trump wins, and Republicans keep control of the Senate. The nomination will be confirmed, and the timing doesn’t really matter much.
Scenario 2: Trump wins, and Democrats take control of the Senate. This is a very unlikely scenario politically but plausible if Trump secures a very narrow win in the Electoral College. In this scenario, McConnell will try to bring the nomination to a vote during the lame-duck session while Republicans still control the Senate because the political consequences of confirming a reelected president’s nominee would be very low.
Scenario 3: Biden wins, and Republicans keep the Senate. In this scenario, McConnell will again try to bring the nomination to a vote in the lame-duck session. The nominee will likely be confirmed because Republican senators in close races in November will not have much fear of political consequences whether they win or lose. Because Republicans will control the Senate, there won’t be a fear of the Democrats going nuclear in retaliation, as could happen in the next scenario.
Scenario 4: Biden wins, and Democrats take the Senate. In this scenario, there is a good chance that McConnell will not bring the nominee to a vote. To be sure, McConnell sees the courts as his legacy and would really want to fill the seat before Republicans lose control of the Senate. In this scenario, however, Democrats would be in a strong position to retaliate and pack the Court. Packing the Court is not hard constitutionally — Congress could simply pass a law adding four seats to the Supreme Court. It is, however, very hard to do politically, because the party packing the court would be seen as violating the longstanding tradition that the court has nine members.
Not bringing the Garland nomination to a vote in 2016 was a naked power play that violated a different set of norms and understandings concerning the Supreme Court. If McConnell now brings President Trump’s nominee to a vote in violation of the principle he articulated in 2016 when justifying his refusal to bring Merrick Garland’s nomination to a vote, it would give Democrats the political cover to go with naked power plays of their own: eliminating the filibuster, packing the Supreme Court and voting for statehood for Washington D.C. and Puerto Rico.
On the other hand, if the Republicans keep the seat open in this scenario, then the political case for Democrats packing the court is essentially eliminated. The perceived injustice of the Republicans’ refusal to vote on Obama’s nomination of Garland will have been met – an eye for an eye – by the Senate not proceeding on Trump’s nomination to fill the current vacancy. As much as McConnell wants to fill the seat, he would likely prioritize maintaining the status quo – where there is a current 5-4 conservative majority on the Supreme Court – and reducing the pressure on moderate Democratic senators to go nuclear in retaliation.
D. Benjamin Barros is dean and professor of law at the University of Toledo College of Law.