The Reason Why Trump Might Delay Replacing Ginsburg

If there’s one Republican who could be convinced that filling the sudden Supreme Court vacancy is a bad idea, it’s President Donald Trump.

There’s no question that the passing of Ruth Bader Ginsburg, the trailblazing liberal justice who died Friday at age 87, gives the GOP an opportunity that appears too good to pass up. By replacing Ginsburg with a conservative jurist, Republicans would cement a durable right-wing majority on the high court, one that could deal crippling blows to the left on issues ranging from gun laws to affirmative action to abortion rights. It would seem a no-brainer to any conservative ideologue: With Trump trailing in the polls, and fewer than seven weeks until Election Day, Republicans should act immediately to lock down one branch of the federal government.

But Trump is not a conservative ideologue. He’s an opportunist. The president cares about court appointments primarily because of the political capital they accrue with his base. A relative newcomer to the judicial wars, Trump once recalled to me his astonishment upon realizing how some voters—particularly religious conservatives—prioritized judges above all else when casting their ballots.

“I had no idea how important Supreme Court judges were to a voter. No idea,” Trump told me in an interview last year. Recalling how his numbers lagged with certain Republicans after securing the GOP nomination, he added, “I was getting really hurt, because they were afraid I was going to pick maybe liberal judges.”

Trump’s solution to this was a stroke of political genius. In May 2016, the presumptive nominee unveiled a list of top conservative jurists, promising to pick one of them if elected. This was not an abstract exercise: The death of Justice Antonin Scalia earlier that year—and the refusal of Senate Republicans to grant a hearing to President Barack Obama’s nominee, Merrick Garland, claiming it violated election-year precedent—guaranteed a Supreme Court vacancy would be on the ballot come November. Trump made this central to his courtship of reluctant Republican voters. So did the party’s leaders. Some would privately assure one another that they weren’t voting for Trump; they were, quite literally, voting for the balance of the Supreme Court.

This tactic worked. Exit polling revealed that Supreme Court appointments were “the most important factor” for 21 percent of the electorate; Trump won 56 percent of those voters to Hillary Clinton’s 41 percent. Moreover, 26 percent of all people who supported Trump called Supreme Court nominees “the most important factor” in their decision; only 18 percent of Clinton supporters said the same. A total of 6,655,560 votes were cast for Trump in Pennsylvania, Michigan and Wisconsin, the three states that delivered his threadbare winning margin in the Electoral College. Extrapolating from the exit polls, that means 1,730,446 of them were primarily motivated by the Supreme Court—in states he carried by a combined 77,744 votes.

Any number of variables could tip the scales in such a tight election. But it’s not difficult to deduce that had a Supreme Court seat not been hanging in the balance, Hillary Clinton would be president right now. When I offered this theory last year to Senate Majority Leader Mitch McConnell—the architect of the strategy to block Garland and keep the seat open—he grinned.

“I agree,” McConnell said.

McConnell, an eternal opportunist for whom intellectual consistency does not weigh on his decision-making, had already made clear earlier in Trump’s term that Republicans would not hesitate to fill an election-year Supreme Court vacancy. The majority leader reiterated that position on Friday night. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell said in a statement.

Accusations of hypocrisy will not deter McConnell. Nor will it daunt most Senate Republicans. Whatever pain might be inflicted on the party now cannot compare to the pleasure of effecting a generational shift in the makeup of the Supreme Court. Yes, Republicans have a narrow, 53-seat majority, meaning they can afford only three defectors if they hope to confirm a new justice before the end of Trump’s term. But the Senate’s vulnerable, purple-state Republicans are the people who appreciate how ephemeral their influence really is; how nothing is guaranteed beyond November. Having devoted their careers to advancing a conservative agenda, it’s difficult to see them passing on the chance to leave a mark that will outlast their time in office.

For Trump, on the other hand, this isn’t about any long-term ideological struggle. It’s about short-term survival.

Having been reminded countless times over the past 45 months that his Supreme Court gambit won him the trust of social conservatives—which, in turn, won him the election—Trump surely realizes that this is a moment of maximum leverage. Maybe he doesn’t bother using it; maybe he automatically produces more of the goods, keeping his most important customers satisfied, believing it’s one more accomplishment to point to.

But the president is transactional to his core. This was exactly the word—“transactional”—that Tony Perkins, head of the Family Research Council, used when we discussed the Supreme Court list Trump unveiled in 2016. “Evangelicals had been used over and over by Republicans. And there was something different about his interaction with us,” Perkins told me. “He wanted our votes, and he made promises that most Christian candidates would never, ever make.”

Trump has catered to the religious right in outsize ways. His administration has consistently charged headlong into controversial policy areas, such as abortion and religious liberty, that Republican predecessors steered away from. In meetings with top social conservative leaders—whom he regularly hosts at the White House—Trump has not been shy about reminding them that he’s kept his promises. It’s possible that the president will view this sudden Supreme Court vacancy as part of that old transaction. It’s also possible, however, that he comes to see it as part of a new transaction; that with just 46 days remaining until the election, he needs every carrot he can possibly dangle in front of voters.

McConnell and other top Republicans will argue that this is a most pleasant September surprise, an occasion to pad the president’s résumé with another signature achievement that he can sell to voters. They will tell him this is about reinvigorating parts of the base that have lost their zeal—and warn him that some conservatives will revolt if he doesn’t deliver immediately. They will swear that confirming another Supreme Court justice on the eve of the election will serve as an exclamation-point reminder to Republicans of why their vote matters.

But will the president buy it? It’s important to recognize that Trump fancies himself the ultimate driver of hard bargains. He could be persuaded that delivering in good faith is the surest way to motivate and mobilize his voters. Then again, informed by the experience of 2016—and polling to suggest slippage among some of those voters—he could become convinced that keeping them hungry is the only guarantee of earning their support. After all, what kind of negotiator throws away a bargaining chip? What kind of salesman gives away something that’s priceless?

Naturally, it’s not as though Trump can come out and say as much. But there are ways for the famously disorganized administration to intentionally drag its feet, to slow the process enough so that it’s close enough for voters to smell a new Supreme Court justice but not close enough for the Senate to confirm one. This could even be done with the blessing of McConnell.

Why would the majority leader go along with it? Because even under the worst-case scenario—Trump delays a nomination, then loses to Joe Biden—McConnell’s leverage will only increase after November 3. The Republicans most hesitant to confirm a new justice before Election Day might feel liberated to do just that in the days following, either because they’ve secured another term or because they’ve become lame ducks. If Trump loses, and Democrats are preparing to assume total control of the government, McConnell won’t have a hard time selling his inhibited colleagues on the necessity of bolstering the judiciary as a bulwark for conservatism.

In this sense, the true countdown clock for Trump replacing Ginsburg isn’t 46 days.

It’s 107 days. That’s when Vice President Mike Pence — in the final weeks of his first term — will swear in senators for the 117th Congress.