We won’t even know who President Donald Trump’s pick to replace the late Ruth Bader Ginsburg on the Supreme Court will be until late this week, but we know now for (almost) certain that Senate Majority Leader Mitch McConnell (R-Kentucky) has the votes to confirm the pick to the court.
The last 72 hours have made that much clear. On Tuesday morning, Utah Sen. Mitt Romney announced that he supports a vote on Trump’s nominee. “I intend to follow the Constitution and precedent in considering the President’s nominee,” he said in a statement. “If the nominee reaches the Senate floor, I intend to vote based upon their qualifications.”
Romney’s decision comes two days after retiring Tennessee Sen. Lamar Alexander announced that he supported a vote on Trump’s eventual nominee before the election, eliminating perhaps the single most likely GOPer to join Sens. Lisa Murkowski of Alaska and Susan Collins of Maine in opposition to confirming a Supreme Court justice this close to a presidential election. Then, on Monday, Colorado Sen. Cory Gardner, who is an underdog for a second term this November, said that he too backed a vote before the election. As did Sen. Chuck Grassley of Iowa who had, in the past, expressed significant reservations about trying to confirm a justice in the waning days of an election.
And with those critical dominoes, any experienced vote-counter can see the writing on the wall: This nomination is going to go through — and McConnell is going to win.
Here’s why. McConnell can afford to lose three Republican senators and still have the 50 votes he needs to end debate on the eventual nominee (aka invoke cloture) and confirm the person to the court. (The change in filibuster rules, which was begun by then-Senate Majority Harry Reid in 2013 for appeals court judges, opened this Pandora’s box.)
Murkowski and Collins are two. McConnell actually could have afforded to lose Romney’s vote and still get the nominee through. Now that he has Romney in the fold, McConnell has even more wiggle room — although he’s not likely to need it.
Yes, it’s never over until it’s over. And yes, there is a group of senators who haven’t announced their positions on the confirmation vote — most notably retiring Kansas Sen. Pat Roberts. Roberts, like Alexander, is a seen as part of the Republican old guard and someone who might worry about the precedent being set by trying to push a nominee through so close to an election. And without a reelection race ever again to worry about, Roberts can act on his conscience.
But with Romney and Alexander now backing McConnell, it’s extremely hard to believe that Roberts would come out in opposition to the vote — knowing that it wouldn’t change anything. A Roberts “no” on the eventual nominee still would leave McConnell with 50 “yes” votes — and the nominee would be confirmed. Why charge at that windmill if you are Roberts, a lifelong conservative with little interest in making news at the end of his career?
Like him or hate him, you have to hand it to McConnell. He has, again, proven that he commands the almost total loyalty of his GOP conference. As McConnell did with the contentious Supreme Court nomination of Brett Kavanaugh, who was confirmed by a 50-48 vote, he has demonstrated that when the pressure is on, he is able to line up votes like very few leaders before him.
Barring some sort of major development to derail the process — if, say, Trump went off script and picked someone seen as far too extreme — McConnell is going to have played the critical role in confirming three Supreme Court justices over the last four years and fundamentally altering the ideological makeup of the court for decades to come. And that’s not even considering the hundreds — literally — of federal judges below the Supreme Court level that Trump has nominated and McConnell has confirmed through the Senate.
“You know what Mitch’s biggest thing is in the whole world? His judges,” Trump told Washington Post reporter Bob Woodward in December 2019. “He will absolutely ask me, please let’s get the judge approved instead of 10 ambassadors.”
And now, with the near-certain confirmation of fully one third of the court over the last four years, McConnell’s legacy is complete. He will go down as one of the most consequential Senate leaders in modern history, overseeing a massive ideological overhaul of the judiciary branch from the bottom all the way to the top. And there’s not a damn thing Democrats can do about it.
