The conventional wisdom today is that Senate Majority Leader Mitch McConnell will stop at nothing to confirm the late Ruth Bader Ginsburg's replacement on the Supreme Court, either prior to the election or in the lame duck session before the next Congress is seated in January. Kentucky's Machiavelli has already put out a statement indicating this is precisely what he will do. President Trump is on board, calling for the nomination process to proceed "without delay," and conservative activists are energized to finally have an insurance vote for when one of the existing conservative justices goes rogue. Most observers expect that McConnell would jam a nominee through in November or December even if Republicans have lost the presidency and the Senate to Democrats.
Maybe — but there's an alternate path that is politically smarter for McConnell's chances of holding onto the Senate in November and preserving the GOP's hold on the federal judiciary even if they don't. And that is to leave the seat open until January.
Can you imagine the shock if McConnell were to back off of his pledge to give a nominee a vote before the next president is inaugurated? If he were to give a speech announcing his intention to reduce, if only temporarily, the high stakes and anger around the Supreme Court? Mitch McConnell is the Stanislavsky of faux sincerity. He would knock it out of the park. The press coverage would be fawning: "Master brawler issues rare call for national unity." He could curry favor with the millions of Americans who hold President Trump's coronavirus response in contempt by saying that the Senate is simply too busy working on another relief package to take up the difficult work of confirming a Supreme Court nominee. Better yet, he could work with House Democrats to actually pass a relief bill, which would have the virtue not only of being popular and helping his most vulnerable caucus members, but would also be the right thing to do. (In other countries this strange concept is known as "governing.")
McConnell could, alternatively, simply have other Republican senators take one for the team. Chuck Grassley (R-Iowa), Mitt Romney (R-Utah), Lisa Murkowski (R-Alaska) and Lamar Alexander (R-Tenn.) don't have to face voters for years. Alexander is retiring. Have them bear the brunt of activist frustration and ask them to grit their teeth and endure the fusillade of angry tweets from the president. Either way, Republicans would appear magnanimous, a look they haven't worn in so long they'd have to pray it still fits.
Backing off the mania to replace Ginsburg as quickly as possible would also relieve the pressure on blue state Republicans like Cory Gardner (Colo.) and Susan Collins (Maine) in advance of their long-shot bids to keep their seats. Martha McSally (Ariz.), who also looks like a goner according to today's polling, might also get a boost from a change in public perceptions of the Republican Party. Some subset of the suburban women who helped canonize Ginsburg might soften their opposition to these candidates, who are now seen, rightly, as mindless apologists for Trumpism and its horrors. I'm not just making this up — there's data. In a New York Times/Sienna College poll last week, voters in Maine, Arizona, and North Carolina favored having Biden pick the next Supreme Court justice by 12 points, 53-41. Forcing these three embattled senators to defend a hardball maneuver just weeks before they face the voters seems like political suicide.
Of course, polling also, paradoxically, suggests that Americans support holding hearings this year, just as they did in 2016, when the Republican-controlled Senate refused to even entertain the idea of confirming Merrick Garland, Barack Obama's nominee to replace the late Antonin Scalia. But the GOP paid no price for defying a supermajority of voters that year, instead reaping the benefits of conservative enthusiasm for maintaining control of the judiciary. And it's one thing to tell pollsters you support hearings in theory — quite another when faced with the reality of replacing the country's most renowned liberal jurist with a hardline conservative bent on gutting abortion rights.
It is possible that nothing McConnell does or doesn't do can save the GOP's Senate majority, which may survive or perish based on how President Trump does on Nov. 3. But even if the GOP loses the Senate and the presidency, keeping the seat open until January could do something even more important for McConnell and the conservative movement's 40-year-long struggle to conquer the federal judiciary: It would suck the air right out of the nascent court-packing movement on the left. Holding Ginsburg's seat open for Biden would allow Republicans to claim that everything is even — both Obama and Trump were prevented from filling crucial seats in an election year. An eye for an eye. Justice has been served.
The court-packing threat is no longer an idle one. While it was once the purview of progressive activists and obscure college professors like me, the idea has gone mainstream in the hours since RBG's death. House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) took to Twitter yesterday and announced that if Republicans move forward with confirming RBG's replacement in the lame duck session, "the incoming Senate should immediately move to expand the Supreme Court." Sen. Richard Blumenthal (D-Conn.) and Minority Leader Chuck Schumer are both going with some version of "all options are on the table." These are not Squad radicals, folks. If these cautious, establishment Democrats are talking about court packing, it's no longer an abstraction.
Why not just let Biden fill Ginsburg's seat and thus content themselves with a 5-4 majority? That split is what they risked it all for by holding Garland's seat open in the first place! If GOP elites are nervous about maintaining control of the institution, they could ask Clarence Thomas and Samuel Alito to step down and replace them in the lame duck session, which would be much less likely to cause apoplexy on the left. Then Republicans would have a full complement of conservatives in good health, they would likely not have to worry about any of them dying for a decade, and the five of them could go about merrily wrecking the next Democratic administration's policy agenda.
Go ahead and laugh this all off, because it probably is preposterous. McConnell has never missed an opportunity to pursue short-term gain at the expense of the GOP's long-term political fortunes, and there probably aren't enough Senate Republicans willing to stop him. But people chuckled nearly a year ago when I said that McConnell's best move for the GOP's political future would be to go ahead and convict Trump and remove him from office.
How different would the political landscape look today if Mike Pence had been president when the United States collided with the coronavirus in March? Say what you will about him, but every indication is that he would have taken it seriously and in all likelihood, the act of doing so would have provided him with a huge public opinion bonus, as it has for even the most unpopular governors in the country who made an effort to combat the virus. Instead of fighting to retain the Senate against the headwinds of a relentlessly divisive and unpopular president, McConnell and Republicans would almost certainly be fighting from a position of strength, perhaps even from an insurmountable fortress. Pence would be cruising.
Instead, they yoked themselves forever to President Trump, and now they're fighting an uphill battle for their own survival. And it's why they might want to think twice about snapping to attention and forcing another conservative radical onto the Court just because the president told them to.