Nominating to fill the Supreme Court vacancy now, but deferring confirmation until after the election—especially if the nominee were to be subjected to hearings in the meantime—would further advertise the Republican Party’s unseriousness and likely contribute to President Trump’s defeat in November. Highly qualified nominees would be reluctant to lend themselves to such a fraught game.
The least useful Republican senators have rushed to urge the president to agree to a delay, and (almost) threatened to join the Democrats in opposing the nomination if the vote comes before the election. Majority Leader Mitch McConnell (R-Ky.) responded with characteristic ambiguity by promising that the Senate would vote on confirmation. But when?
Any and all familiar with the U.S. Senate know that most senators, especially the least responsible, will do almost anything to avoid voting, that advertising their doubts is a standard way of saying “don’t make me vote,” and that it says nothing about how they actually will vote when they have to.
Understandably, senators such as Lisa Murkowski (R-Alaska), Susan Collins (R-Maine), Martha McSally (R-Ariz.), Cory Gardner (R-Colo.), and Thom Tillis (R-N.C.), who have made careers of talking conservative while doing their utmost not to displease the ruling class that despises us, don’t want further to energize opposition to their reelection. Hence, they kind of promise to vote “no” now while kind of promising to vote “yes” after the election.
The question before President Trump and McConnell is whether to identify with these small masters of not so small betrayals. If they do, they would discredit themselves and their party. Why should voters believe that, all together, they will do after the election what they have the power to do now but refuse? What is the difference between before the election and after the election?
There is only one difference, namely: to act before an election is to submit one’s actions to immediate judgment by the sovereign people. As you act, you must explain to the voters why it is right to act as you do. The voters then decide on you.
Why would anyone promise to do something after an election that they refuse to do beforehand, if not to evade the voters’ direct judgment? Why should the voters not suspect either that Trump and McConnell are leading from behind or even amenable to some sort of bait-and-switch to please the likes of Murkowski? And why would Murkowski not be emboldened by the success of her kind of threat?
And why would a worthy nominee agree to undergo the certainty of vilification by the Left knowing that, after the election, the newly reelected weak Republicans would be stronger than ever in pressing the concerns of their ruling class donors against Trump, newly a lame-duck, regardless of voters whom they would not have to face for another six years?
President Trump’s voters are angry because, during the past four years, they have lost more control over their lives and have seen America’s power structure turn against them even more than in the previous generation. They have seen the presumed conservative Chief Justice John Roberts lead the charge against them, and Justice Neil Gorsuch playing a troubling role. Trump has worked hard to reassure his voters that, all this notwithstanding, he is doing his best to translate his promises into practice. His promises regarding the Supreme Court are the clearest and the most obvious in his power to keep.
Filling the current vacancy with a proven conservative leader—or at least forcing a vote on such a nominee before the election and as part of the election campaign—is an opportunity Trump and McConnell cannot evade.
The schedule and process of confirmation are solely in their hands. One day of hearings, with ad hominem circuses banned, followed quickly by a Judiciary Committee vote, limited floor debate, and a full vote of the Senate. If President Trump and McConnell force such a process, they should be confident that the dynamics of democracy will deliver a Supreme Court nomination victory and a bigger than expected victory on November 3.
Of course, Republican senators are free to vote “no,” especially the ones up for reelection. In the current binary environment, however, such a choice is tantamount to a repudiation of the voters on whom they rely for reelection. Voting “no” would mean resigning from the Senate and from the Republican Party as well. After such a vote, on whom would they rely for their next election? To what office? Not even town dog-catcher would be open to them.
Powerfully, democracy’s logic argues to Donald Trump and Mitch McConnell: Nominate, confirm, and let the people judge.