Two of the biggest questions in the aftermath of Justice Ruth Bader Ginsburg’s death are, “Will whomever President Trump chooses to replace Ginsburg be confirmed?” and “How will the nomination and confirmation process affect the 2020 elections?” Those two questions are, of course, connected. And the place where they really intersect is the U.S. Senate.
The Senate will play a pivotal role in deciding the answer to the first question, but its members will also be on the receiving end of whatever political fallout the fight to fill Ginsburg’s seat kicks up. So let’s look at both the confirmation process and the electoral process from the perspective of senators.
Electoral concerns will play a big role in the confirmation process
Republican Sens. Cory Gardner of Colorado, Martha McSally of Arizona and Thom Tillis of North Carolina are the three GOP incumbents most in danger of losing reelection, according to FiveThirtyEight’s Senate forecast. In fact, they’re all underdogs at the moment. Two other GOP senators, Susan Collins of Maine and Joni Ernst of Iowa, are in toss-up races. On the other side of the aisle, Democratic Sen. Doug Jones of Alabama is also facing an uphill battle for reelection.
The outlook for incumbent senators up for reelection
Chances of winning reelection according to FiveThirtyEight’s “deluxe” forecast, as of Sept. 20, 2020, at 9 p.m. ET
StateIncumbentPartyDEM CHANCESGOP CHANCESRhode IslandReedD100%MassachusettsMarkeyD100DelawareCoonsD100OregonMerkleyD100New JerseyBookerD991IllinoisDurbinD991VirginiaWarnerD991New HampshireShaheenD991MinnesotaSmithD937MichiganPetersD8119ArizonaMcSallyR7822ColoradoGardnerR6931North CarolinaTillisR6238MaineCollinsR5347IowaErnstR4456MontanaDainesR3565AlabamaJonesD2872GeorgiaPerdueR2773South CarolinaGrahamR1684AlaskaSullivanR1486TexasCornynR1288Louisiana*CassidyR392MississippiHyde-SmithR595KentuckyMcConnellR496South DakotaRoundsR199IdahoRischR100NebraskaSasseR100West VirginiaCapitoR100OklahomaInhofeR100ArkansasCottonR100*In Louisiana’s Senate election, multiple candidates from each party will be on the ballot on Election Day. If one candidate gets at least 50 percent of the vote, that person wins the seat, but if no candidate clears that bar, the top two vote-getters advance to a runoff election. This table shows the chance that Bill Cassidy will win reelection rather than the chance that any Republican will win the seat.
Given that it’s the final stretch of the campaign and all these senators are at risk of losing their seats, you can bet that electoral factors will be weighing heavily in however they decide to vote on Trump’s nominee and the process to confirm her.1
Even senators with safer seats, including Republicans Steve Daines of Montana, David Perdue of Georgia and Lindsey Graham of South Carolina, will be trying to figure out how the Supreme Court vacancy factors into their races. And as chairman of the Senate Judiciary Committee, Graham would be leading the confirmation hearings for a Trump Supreme Court nominee. (Ernst and Tillis are also on the committee.)
Before we can make any firm conclusions about how the politics of this will play out, we’ll need to wait for Trump to make his pick and for more polling to come out, but out of the gate it seems as though Collins, Gardner and Jones have the most to lose in this process.
The confirmation fight is likely to be highly partisan and highly polarized — and it’s likely to be a major part of the discussion in the campaign’s final weeks. Democratic voters almost universally oppose anything Trump does, while Republican voters almost universally support the president. Trump and many prominent Republicans are demanding that any nominee be voted on — implying that they will support a confirmation vote before the November election or one after the election even if Trump loses to Joe Biden. Meanwhile, Democrats are largely united in their view that whichever candidate wins the presidential election should choose Ginsburg’s replacement. So all 100 senators are going to be pressed on the question, “Should whoever wins the presidential election choose Ginsburg’s replacement?” The senators themselves (and probably voters too) will know that the position of the Democratic Party is yes and the position of the Republican Party is no.
Having a highly partisan issue dominate the political debate is problematic for Jones, Collins and Gardner in particular because all three senators are running for reelection in states where the majority of voters are aligned with the other party. At the same time, breaking with their party on a high-profile issue like this could annoy their base, which would also make it harder for them to win reelection.
Take Trump’s approval rating in each of these states. The president is significantly more popular in Alabama (57 percent approval, 40 percent disapproval, per Civiqs) than he is nationally (42 percent approval, 55 percent disapproval per Civiqs; 43-53 per FiveThirtyEight’s average of a number of polls). Trump’s net ratings in Maine (-23 points) and Colorado (-19 points) are significantly worse than his national standing. And in Arizona (-11 for Trump) and North Carolina (-8), the president’s standing is fairly similar to where he is nationally.
These general electoral dynamics have perfectly predicted the reactions of these senators in the days since Ginsburg’s death. McSally and Tillis are among the Republicans who already announced that the Senate should vote on a Trump nominee, whether the president wins the election or not. That makes sense for them — on a highly partisan issue like this in a closely divided state, the safe bet is to just stick with your party. (Perdue, in Georgia, has also said he supports Trump’s nominee moving forward, regardless of the November election results.)
In contrast, Collins (in blue-leaning Maine) has adopted the Democratic position — that the winner of the presidential election should choose Ginsburg’s replacement.
Gardner and Jones have been noncommittal so far. That makes sense too — their choices are basically to either annoy their party’s base or annoy the clear majority of the electorate in their states. Neither stance is ideal, so it’s not surprising that they are hesitant to say anything.
In the end, the vast majority of senators will stick with their party
No matter what their electoral considerations are, however, expect most senators to align with their party. That’s what usually happens on high-profile issues.
For example, the confirmation vote for Brett Kavanaugh’s Supreme Court nomination was also on the eve of an election (Oct. 6, 2018). West Virginia Democrat Joe Manchin, up for reelection that November in a very pro-Trump state, broke with his party to vote in favor of Kavanaugh’s nomination. But the other nine Democrats who were up for reelection in 2018 in states that Trump won in 2016 voted against Kavanaugh.2 The one GOP senator up for reelection in 2018 in a state Hillary Clinton won in 2016, Dean Heller of Nevada, also voted the party line, supporting Kavanagh.
Overall, Manchin was the only Senate Democrat to back Kavanaugh; Alaska’s Lisa Murkowski was the only Republican who didn’t support him.3 (More on Murkowski in a bit.)
Similarly, on the Trump impeachment votes in February, senators up for reelection this year aligned with their parties instead of their states’ politics when the two conflicted. (Collins and Gardner opposed both articles of impeachment, whereas Michigan’s Gary Peters and Jones voted in favor of both articles.) Utah’s Mitt Romney was the only Republican to vote for Trump’s removal, which all Senate Democrats supported. (More on Romney in a bit.)
What explains this? First of all, senators may put their personal ideological views ahead of their electoral considerations, particularly on judicial nominations. After all, it’s likely that a Republican senator would be fairly aligned with someone like Kavanaugh on most issues while a Democratic senator would be opposed. Second, the electoral effects of these kinds of votes are not totally clear. For example, Montana is more Republican-leaning than Florida, but Montana Democratic incumbent Jon Tester won reelection in 2018 while longtime Florida Democrat Bill Nelson lost. (Both voted against Kavanaugh.) Manchin voted for Kavanaugh and won, but it’s not clear he won because he voted for Kavanaugh.
Third, members of Congress, particularly those in states where they are not electorally safe, must consider their futures if they lose those elections. And the career incentives for politicians usually point toward sticking with your party on key votes. Jones was a prominent U.S. attorney, so it’s easy to imagine him serving in some legal post in a Biden administration if he should lose reelection in Alabama in November and Biden should win. But Democrats would probably be less eager to put Jones in a high-profile role in a Biden administration if Jones had voted for Kavanaugh, opposed impeachment and spent the weeks before the 2020 election urging the Senate to hold a vote on Trump’s nominee to replace Ginsburg.
Senators like Gardner and McSally who have been down in the polls for months are probably aware that they are unlikely to be in Congress next year. So they might be positioning themselves for lobbying jobs (which usually involves maintaining strong relationships with the people in your party who are still in Congress) or future runs for other offices. So to keep doors open to them in GOP circles, Gardner and McSally may align with their party’s general posture in this nomination process, even if that approach slightly reduces their chances of winning reelection.
Murkowski and Romney will really matter
Murkowski has broken with her party in two major ways in the Trump years: opposing the push to repeal Obamacare and opposing Kavanaugh’s confirmation. Romney’s impeachment vote was arguably one of the biggest rebukes of a sitting president from a member of his own party in recent history. So it would not be surprising if they didn’t align with Trump on this issue.
Murkowski said over the weekend that Republicans should not fill Ginsburg’s seat before the election. That is similar to the stance being taken by Senate Democrats and Collins, but not exactly the same. Murkowski has not ruled out supporting the confirmation of a Trump nominee postelection — even if Trump loses in November. Speaking of that possibility …
Preelection commitments could change postelection
The disagreement between the parties is really over who gets to pick the nominee (Trump or whoever wins the election), not over the timing. I doubt Democrats will strongly object to Republicans confirming a new justice in late November or early December if Trump has clearly won the presidential election.
That said, the considerations for individual senators are much different. Collins, in the context of her reelection campaign, is suggesting that she would not support Trump picking a nominee if he loses the election. But if Collins herself loses reelection and a vote on the nominee comes up in December, her pledge to Maine voters isn’t binding. She might feel comfortable reneging on it. It’s not just Collins — there is no guarantee that preelection statements from senators mean much postelection.
Also, the postelection period might have another wrinkle. Since McSally was appointed to her Senate seat, Arizona law suggests that her Democratic opponent, Mark Kelly, could be seated as soon as late November if he wins that race. The math for Republicans is harder if they must confirm a judge with a 52-48 majority instead of a 53-47 one, so I would assume that they would push for a vote while McSally is still there.
Based on what we know right now, here’s the mostlikely way that the dominoes will fall: Trump chooses a nominee this week. The Senate holds hearings in October, but there is not a vote on the nominee before the election. Biden beats Trump. In the postelection, lame-duck Senate session, 50 Republican senators and Vice President Mike Pence combine for 51 votes to confirm Trump’s nominee, with the 47 Democrats, Collins, Murkowski and Romney in opposition.
I’m not predicting all this will happen — there’s plenty of time for things to change — but that’s the picture we have right now. We can expect a lot of drama over the next few weeks, but in reality, only one question really matters: How many sitting Republican senators will prevent a sitting Republican president from adding a sixth Republican-appointed justice to the Supreme Court, giving the party a dominant majority on the court for perhaps a generation? The answer is, of course, not very many. But there might be four.