Momentum growing among Republicans for Supreme Court vote before Election Day

Momentum is growing among Senate Republicans for a Supreme Court confirmation vote to take place before Election Day, something that GOP strategists say would rev up conservative voters and deliver a huge accomplishment for President Trump before voters go to the polls.

As of Saturday afternoon, Senate Republicans had yet to have a conferencewide call on the vacancy created by the death of Supreme Court Justice Ruth Bader Ginsburg, but already a number of GOP lawmakers are publicly and privately making the case for a vote before Nov. 3 instead of in the lame-duck session.

“The logistics are getting it done before the election are very difficult. That is very fast. But it’s not unusually fast. [Late Justice] John Paul Stevens was confirmed in 19 days, and anyone picked is going to be recently voted on,” said a senior Senate Republican aide, who predicted that Trump would chose a conservative appellate court judge.

Amy Coney Barrett, a federal appeals court judge, has emerged as a front-runner to be Trump’s pick to replace Ginsburg, according to people familiar with the discussions.

The aide cautioned that the timing will depend on how well known Trump’s nominee is and whether GOP lawmakers feel comfortable with the person’s credentials and record.

Trump on Saturday said it would be “very good” to vote on the nominee before Election Day but that the decision would be made in consultation with Republican senators.

“I would think before would be very good, but we’ll be making a decision. I think the process can go very, very fast. I’ll be making my choice soon,” Trump told reporters at the White House before heading to a campaign rally in North Carolina. “I think we’ll have a very popular choice, whoever it may be.” 

A public relations firm working for the Judicial Crisis Network, which supports conservative judicial nominees, circulated a memo Saturday noting that Stevens, former Justice Sandra Day O’Connor and Ginsburg were all confirmed in the Senate in fewer than 45 days — the span of time left between now and Nov. 3.

Senate Majority Leader Mitch McConnell (R-Ky.) pledged on Friday that Trump’s pick would get a vote but didn’t lay out timing for confirmation hearings and floor action.

While some Senate Republicans favor quick action on the nominee, the conference is divided.

Sen. Susan Collins (R-Maine), who was a pivotal vote in confirming Trump’s last pick to the Supreme Court, Justice Brett Kavanaugh, said Saturday that a confirmation vote should wait until after Election Day.

“Given the proximity of the presidential election … I do not believe that the Senate should vote on the nominee prior to the election,” Collins said in a statement.

She also argued that the winner of the presidential election, whether it be Trump or Democratic nominee Joe Biden, should fill the vacancy — an argument that many Senate Republicans are expected to reject.

“In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd,” Collins said.  

But Collins, in a nod to what she called Trump’s “constitutional authority” to put forth a nominee, said she would have “no objection” to the Senate Judiciary Committee beginning the process of reviewing that person’s credentials before Election Day. Collins is trailing Democratic challenger Sara Gideon in recent polls in Maine, a state Hillary Clinton won in 2016.

Another influential moderate, Sen. Lisa Murkowski (R-Alaska), said before Ginsburg’s death was announced that she would not support filling a Supreme Court vacancy right before the election or in the lame-duck session, saying that doing so would create a “double standard” after Republicans held up former President Obama’s Supreme Court nominee Merrick Garland in 2016.

But they so far are the only two Senate Republicans to publicly state opposition to filling Ginsburg’s seat before Election Day.

Senate Republicans control 53 seats and could afford three defections, as Vice President Pence could break a 50-50 tie. Some Republicans are also floating the possibility that moderate Democratic Sen. Joe Manchin (D-W.Va.), who voted for Kavanaugh in 2018, may vote with Republicans.

A wild card is Sen. Mitt Romney (R-Utah), the only Republican to vote to convict Trump on an article of impeachment earlier this year. He hasn’t weighed in yet on the timing question.

Another question mark is Sen. Cory Gardner (R-Colo.), who is up for reelection and behind in the polls in another state Clinton won in 2016. He declined to address the issue of timing during a town hall Saturday.

Senate Republican lawmakers and aides who advocate for a speedy confirmation process argue that Republican voters expect them to take care of business before Election Day instead of leaving things to chance in a lame-duck session in late November or December.

“Everybody’s got to make their own determination based on his or her own convictions and what’s best for their race, but the Kavanaugh nomination was significant in many elections,” said a second Senate GOP aide. “The voters will be really fired up.”

Two former Democratic senators, Claire McCaskill (Mo.) and Joe Donnelly (Ind.) thought they were headed to reelection in the fall of 2018 until the vicious fight over Kavanaugh sent an electric shock through the Republican electorate.

The Senate GOP aide argued that a confirmation hearing and vote before Election Day “will create more energy for turnout.”

If McConnell decides to postpone a confirmation vote until after Nov. 3, he would risk a backlash from GOP voters and activists, the aide warned.

“The people that care about this, the base, the people who are going to knock on doors and get votes, will be upset, otherwise,” the source said. “The longer you wait and the more you try to game out [developments], the more you’re tying your hands. The farther you get out, the more variables there are.”

Sen. Kevin Cramer (R-N.D.) said he supports a timeline that would maximize the pick’s impact on the November election.

“I’m for whatever gives us the best opportunity to confirm a conservative to the court while giving us the best chance of keeping the Senate and White House,” Cramer told The Hill on Saturday. “I didn’t risk my political career and put my family through a grueling Senate campaign to shrink at a moment like this.

Some Republican strategists argue that a vote before Election Day will do more to rev up conservative voters.

“The Republican voters are going to be energized by the Supreme Court fight, and if there’s no vote before the election, they’re going to see that as a sign of weakness,” said Brian Darling, a GOP strategist and former Senate aide.

Darling said McConnell “knows he can get this nomination through if he wants to.”  

He added that “if the Senate looks weak, it’s going to hurt” vulnerable Sens. Thom Tillis (R-N.C.), Joni Ernst (R-Iowa) and Martha McSally (R-Ariz.).

One important consideration is that McSally is trailing badly in the polls and could wind up losing her reelection campaign. If she does, the incoming Democratic senator, Mark Kelly, could be seated as soon as Nov. 30 because the race is a special election to finish the term of late Sen. John McCain (R-Ariz.), which expires in 2022.

That means McConnell could be down a Republican vote in December, a big risk to take since Collins said Saturday that whoever is the winner of the presidential election should choose the nominee and Murkowski has essentially said the same.

Another key concern is the possibility that the results of the 2020 presidential election — and possibly a Senate race or two — will be litigated all the way to the Supreme Court, as happened in 2000 when the court ruled 7-2 and 5-4 in favor of former President George W. Bush, ending the recount in Florida.

Senate GOP aides say their bosses are taking the possibility of a disputed election and the need for the Supreme Court to intervene as a serious factor to weigh. The worst-case scenario would be for the court to deadlock 4-4 on a disputed election result, aides say.

“The Democrats have made it clear they’re going to litigate everything anyway, which means it’s all going to go to the Supreme Court,” said the first Senate GOP aide. “Right now it’s going to be a 4-4 decision because you assume [Chief Justice John] Roberts has essentially become a Democrat.”

Jordain Carney, Morgan Chalfant and Scott Wong contributed.