Confirming a hard right justice in the lame duck period won’t be easy.
If accusations of attempted rape sink Brett Kavanaugh’s Supreme Court nomination, Senate leader Mitch McConnell will choose between i) trying to confirm a new nominee pre-midterms, ii) publicly declaring he’ll wait until after a new Congress is seated on January 3rd or iii) trying to confirm a new justice in the Lame Duck session after Nov 06’s elections if Democrats win the Senate.
i) is getting unlikely — there are only 40 days between Thursday’s Senate hearings and the midterm elections and ii) goes against everything we know about Mitch McConnell and the Republican party. Which leaves us with iii), an endeavour most pundits I read think will succeed. I’m not so sure. (If Republicans retain the Senate they’ll confirm a Justice, the rest of this article only refers to cases where Democrats net two or more seats in November’s elections).
The first thing to note is what the world looks like if Democrats win the Senate. One might think of a scenario where Democrats a 51–49 Senate majority, and Republicans retain the House while winning the ‘House popular vote’. The GOP could argue they have a mandate — more people voted for them in the national elections, the country is evenly divided etc — and use this ‘mandate’ to push through a hard right Justice like Raymond Kethledge. The problem with this scenario is it’s vanishingly unlikely.
Democrats face perhaps the toughest Senate map any major politic party has faced, ever. They’re unlikely to win control of the chamber outside of a tsunami environment which includes winning the House popular vote by ~10+ points, 40+ House seats (and the chamber) a bunch of Governorships and hundreds of state legislative seats. If we wake on Nov 07 to a Democratic Senate (elect) it means Republicans had a brutal, brutal night, unsparingly bleak, impossible to spin.
Mitch McConnell for one year refused to hold hearings on Merrick Garland, an impeccably qualified, centrist judges on grounds Democrats needed to win (another) election to pick Antonin Scalia’s replacement. If he used the lame duck to push through a Raymond Kethledge he would have in two years said ‘If Democrats don’t win the next election they get a say over the next Justice (2016), however if Democrats do win the next election they still won’t get a say over the next Justice (2018)’. This won’t stop McConnell trying, if he deems success possible. McConnell, and the entire Republican elected class, have abundantly demonstrated a fervid desire to confirm right wing judges and minimal respect for democratic norms.
However in 2020 Republicans have roughly twice as many Senate seats up for re-election than Dems who, unless they win Mississippi’s upcoming special election (surprisingly plausible) will only have Alabama’s Senator Doug Jones up for re-election in a red state. If Democrats win the Senate in November they’ll also win the Senate in 2020 almost every time they win the Presidency (as well as some of the time they don’t). The backlash from McConnell’s “Heads I win, tails you lose” approach to Supreme Court nominations would make create a groundswell from the Democratic base for an expansion of the court to at least 11 members.
Gorsuch stole Garland’s seat, Kethledge was voted in by those already voted out. They’re both illegitimate. We tried to play fair. It’s the only ways Democrats, who have won the majority of the vote in 7 of the last 8 Presidential elections, can get a majority of the Supreme Court. We had to do it.
But there’s something else. Smart Robert Mueller watchers believe Special Counsel has left breadcrumbs indicating he’ll reveal his “collusion” hand shortly after November’s midterm elections. Indeed certain actions such as the scheduled sentencing of Michael Flynn appear to hint this way. What if the first two cards Mueller reveals are a pair of aces? What if, in addition to McConnell’s ratfucking, evidence emerges Trump conspired with a hostile foreign power to cheat his way to the Presidency?
Democrats would also block each and every right of centre judicial nomination for the 2019–2021 Congress (they’re likely to do something similar either way but might show flexibility if POTUS/McConnell display some good faith). They might eliminate the filibuster with an eye to confirming Puerto Rico and DC as states as well as dividing California into multiple states in order to ‘redress the democratic deficit’. Eliminating the filibuster would also, from 2021 allow them the give Dreamers citizenship with more immediate voting rights than otherwise.
I’m not sure how Republicans avoid this. They might not — perhaps they force through a right wing nominee. The smartest way would be for electorally non-vulnerable Republicans like Jeff Flake & Bob Corker to refuse to confirm a new Justice. This allows other GOPers to throw their hands up in protestation, pleasing base and donors.
But it’s also impossible to imagine Republicans willingly laying down their card and leaving it open for a Democratic President to fill with a left wing Justice. So the most likely scenario imo is a ‘consensus’ centrist candidate, perhaps in their sixties, boring, enough there for both sides to claim a ‘win’ is confirmed by an overwhelming majority of the Senate.
