The news that Justice Ruth Bader Ginsburg is being treated for a recurrence of cancer is striking terror in the hearts of liberals. As long as she is physically able, the resolute, gutsy Ginsburg will stay on the Supreme Court until there is a Democratic president and a Democratic majority in the Senate. But what if, in the worst-case scenario, Ginsburg’s health forces her out before President Donald Trump’s term in office is over? Worried liberals have been asking me if there’s anything Senate Democrats can do to prevent Trump from getting a third Supreme Court pick in his four years in office.
I can’t give them a very comforting answer. If Ginsburg should leave while Trump is still president, it seems overwhelmingly likely that Trump would nominate a replacement more or less immediately — and that the replacement would be a staunch conservative. And Senate Majority Leader Mitch McConnell would likely act quickly to get that person confirmed.
Once the president nominates a justice, it falls to the Senate to confirm the nominee according to its own discretionary timetable. As we all know, McConnell exercised that discretion on behalf of his caucus by refusing to hold hearings for a vote when President Barack Obama nominated Merrick Garland to fill Justice Antonin Scalia’s vacancy after his sudden death. As a result, Trump got to fill that seat. Now, one would expect McConnell to go to the opposite extreme and push for a rapid confirmation of Trump’s nominee.