Will the Senate Follow Its Own Precedent?

The Supreme Court is all about setting precedent, right? The Senate, apparently not so much. It’s Monday, and this is your politics tip sheet. Sign up here to get On Politics in your inbox every weekday.

Where things stand

The death of Justice Ruth Bader Ginsburg on Friday at 87 jolted the presidential race and down-ballot campaigns across the country, drawing new battle lines even as it appeared distinctly possible that Senate Republicans would vote anyway to confirm a new justice before the end of the year, regardless of the result of the presidential election in November.

At a rally in North Carolina on Saturday, President Trump said he would announce his nominee this week to replace Ginsburg on the Supreme Court, adding that it would be a woman. On Twitter, he pressed his fellow Republicans to act “without delay.”

Last week, in what then seemed largely like a political stunt, Trump released a list of 20 names from which he promised to pick the next Supreme Court justice, if a vacancy emerged.

A successful vote in the Senate would increase the Supreme Court’s conservative majority to six. It would be a crowning achievement for Mitch McConnell, whose tenure as Senate majority leader has been first and foremost a crusade to fill the federal bench with conservative jurists.

Ginsburg’s eight fellow justices on the high court remembered her lovingly in separate statements released shortly after her death. John Roberts, the chief justice, said, “Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice.”

Mourners assembled for vigils across the country this weekend, paying their respects to the second woman appointed to the Supreme Court. Raised in a working-class family in south Brooklyn, Ginsburg was a champion of gender equality as a litigator before her decades-long tenure on the nation’s highest court established her as a pop culture icon and the country’s most-admired Supreme Court justice.

On Saturday, Andrew Cuomo, the governor of New York, announced plans to construct a statue of Ginsburg in Brooklyn.

Speaking to reporters on Friday night, Joe Biden called her “not only a giant in the legal profession but a beloved figure.” He said that the winner in November should choose the nominee, adding, “I think the fastest justice ever confirmed was 47 days, and the average is closer to 70 days” — less time between now and the election.

Biden campaign officials have signaled that they intend to use the court battle and the continuing issue of the coronavirus pandemic to highlight voters’ health care concerns, particularly as the Trump administration has lent its support to a lawsuit currently before the high court that seeks to overturn the Affordable Care Act.

Republicans hold a 53-47 majority in the Senate, meaning they could afford to lose no more than three votes in order to push through a confirmation. As Emily Cochrane reports, several key Republican senators are facing uphill battles for re-election that have now been complicated by the prospect of a confirmation vote. Even McConnell has privately signaled that he is less than enthusiastic about the political implications for his party of a bruising court battle on the eve of the election.

Susan Collins of Maine, who is trailing her Democratic challenger in polls, said on Saturday that the next Supreme Court justice should be chosen by the winner of the November election. Eyes are on other Republican senators in similar situations, including Martha McSally of Arizona and Joni Ernst of Iowa.

But the calculus is different for others, including Lindsey Graham of South Carolina, who is now roughly tied with his well-funded Democratic challenger, according to some recent polls. In those surveys he is running well behind Trump’s comfortable margins in the presidential race; a consequential vote to confirm a conservative judge could help Graham burnish his conservative bona fides with a wary base.

Graham tweeted on Saturday that he would “support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.” As the chairman of the Judiciary Committee, Graham holds the keys to the confirmation process.

Of course, Graham will have to face down his own comments from 2016, when he argued that a vacancy in the Supreme Court should never be filled in an election year, and said to “use my words against me” if the situation ever came up with a Republican in the White House.

Lisa Murkowski, Republican of Alaska, said on Sunday that “the same standard should apply” as it did in 2016, when Republicans thwarted the nomination of Merrick Garland, who had been nominated by President Barack Obama more than seven months before Election Day.

But Murkowski didn’t specifically say she would refuse to confirm Trump’s nominee during the lame-duck session after the November election but before Inauguration Day, in the event that he loses. Some political observers see this as the likeliest time for the Republican leadership to push a vote through the Senate.

In-person voting is officially underway in the general election, as four states opened polling places for early voting on Friday: Minnesota, Virginia, South Dakota and Wyoming.

On Twitter, Trump spoke directly to voters in Virginia, a state where polling has shown him far behind Biden. “Voting starts in Virginia TODAY, and we are going to WIN,” he wrote, adding, “I’ll be having a Big Rally in Virginia, to be announced soon!”

Biden was in Hermantown, Minn., on Friday. “It’s time to take the country back, folks,” he said after touring a union training center there. “It’s going to start here, today, with voting in Minnesota.”

Voting in the four earliest states was largely uneventful, but a crowd of flag-waving Trump supporters did disrupt early voting in Fairfax, Va., on Saturday, assembling in front of the entrance to a polling site at the Fairfax County Government Center and chanting, “Four more years.”

Virginia law disallows people from congregating within 40 feet of a polling place, or from preventing “a qualified voter in entering or leaving a polling place.” County election officials said that the pro-Trump crowd had stayed roughly 100 feet away from the polling site, but they said they eventually had to open a larger portion of the building to allow voters to queue up inside.

Photo of the day

Mourners during a vigil to honor the life of Justice Ruth Bader Ginsburg outside the Supreme Court in Washington on Saturday.

What does the public think the Senate should do?

Would the public hold it against Republicans if they reversed their 2016 position and hastily confirmed a Trump nominee to serve on the Supreme Court? For now, polling can’t offer a simple answer to that question.

But thanks to a number of recent surveys, we have some relevant data points to consider as the debate over replacing Ginsburg begins.

All things being equal, most voters have consistently said they would prefer Biden to choose the next justice, not Trump. As Nate Cohn noted in an analysis this weekend, that pro-Biden tilt is reflected in a recent Fox News poll of likely voters nationwide, as well as in a range of New York Times /Siena College surveys conducted this month in battleground states. In those polls, Biden’s advantage on trust to name a justice ran just ahead of his lead over Trump in the horse race, but the numbers were close.

In a national Marquette University Law School poll last year, Americans said by a margin of 56 percent to 32 percent that they had little confidence in Trump to pick “the right kind of person” to be the next justice.

Yet in a separate Marquette poll just days before Ginsburg’s death, most respondents across political parties said that in a hypothetical situation, if a Supreme Court seat opened up this year and Trump nominated someone to fill it, the Senate should move ahead with confirmation hearings.

At the same time, liberal voters are likely to be fired up over the prospect of letting conservatives cement a court majority that could endure for decades to come. This month’s Marquette survey found that even before Ginsburg’s death sent a wave of anxiety through the party’s liberal base, Democratic voters were slightly more concerned about the Supreme Court than were Republicans. Among likely voters supporting Biden, roughly three in five said that the naming of the next justice would be a very important motivating factor in their vote, compared with just 51 percent of Trump’s supporters.

That result was in line with other recent surveys from CNN and the Pew Research Center, both of which found that Democratic voters were more likely than Republican voters to say that nominations to the Supreme Court would be a highly important voting issue.

On our new podcast ‘Sway,’ Kara Swisher interviews Nancy Pelosi.

“If the election were held today, we would win it all,” Nancy Pelosi, the speaker of the House of Representatives, says in the premiere of “Sway.”

On the first episode of Kara Swisher’s new podcast, she probes Pelosi about the ambitions — and limits — of her influence. As one of the most powerful women in American politics, what can Pelosi get done, and what is she powerless against?

Kara: “You’re the Speaker of the House and you haven’t spoken to the president in almost a year. Do you get a sense that you should be speaking to him given you are the most powerful Democrat at this moment?”

Pelosi: “I speak to him every day in the public domain. That’s how he hears things. I want to have a witness to what I have to say to him.”

Listen to the interview with Pelosi and subscribe to “Sway” for a new episode every Monday and Thursday.

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