Replacing Justice Ginsburg could depend on Arizona’s next senator

Does it get any more 2020 than a Supreme Court nomination fight in the stretch run of a bitterly contested presidential election? It tempts fate to ask that question, since 2020 has a way of one-upping our worst fears. Suffice it to say that there is no end to the intrigue.

At the moment, President Trump appears committed to nominating a replacement for Justice Ruth Bader Ginsburg, who passed away on Friday. Senate Majority Leader Mitch McConnell (R-Ky.) says any nominee “will receive a vote on the floor of the United States Senate.” But exactly when will that happen?

Some Democrats, such as Sen. Richard Blumenthal of Connecticut, have expressed consternation at the thought that Republicans would force a vote before the November election. That could harm the GOP senators trying to retain Senate seats in tough contests. (It’s always possible it could help them, but that’s not the likely net effect.) So, the betting seems to be that Sen. McConnell will wait to conduct the floor vote until after the election, during the lame-duck session.

While undoubtedly lawful, that would obviously be controversial if former vice president Joe Biden were to win the presidency and the Democrats were to take the Senate.

But now, a new wrinkle.

Republicans will control the Senate until at least Jan. 3, 2021, when the new Congress begins, and new members are sworn in. At the moment, they have a 53-47 advantage, but it may not remain that way through the end of the current session.

In Arizona, the Senate contest this year is a special election, pitting the Republican incumbent, Sen. Martha McSally, against Democrat Mark Kelly, a popular former astronaut and husband of Gabby Giffords, the former Democratic congresswoman who tragically suffered a severe brain injury when she was shot by a lunatic in 2012. McSally lost her Senate bid in 2018 to Democrat Krysten Sinema. (Both were members of the House at the time.) Nevertheless, the state’s Republican governor, Doug Ducey, appointed McSally in 2019 to assume the unexpired term of Sen. John McCain, who had died in August 2018 after being reelected in 2016. Ducey had previously named former Sen. Jon Kyl to take McCain’s seat, but Kyl announced that he would return to retirement rather than seek reelection in 2020; McSally was thus appointed in 2019, after Kyl vacated the seat.

Because McSally is appointed rather than elected, and because the Arizona election is a special one rather than the regularly scheduled one in 2022 (the end of the term that Sen. McCain had won), McSally is not necessarily entitled to keep the seat until the next session of Congress begins on Jan. 3. Kelly is ahead in the polls, comfortably so in most of them. Under Arizona law, the winner of the special election could be sworn in immediately after the final canvass of balloting toward the end of November — meaning that Kelly could be a senator by Nov. 30.

According to the Senate calendar, the lame-duck session starts the week of Monday, Nov. 9, and continues for two weeks through Friday, Nov. 20 (except for Veterans Day, on Nov. 11). Then, there is a scheduled adjournment the business week of Thanksgiving (Nov. 23 through 27 – Thanksgiving is Nov. 26). After that, the lame-duck session is scheduled to resume Nov. 30 and continue through Dec. 18, although the session does not formally end until the new session begins on Jan. 3.

If Kelly is elected on Nov. 3, the Republicans’ 53-47 majority would shrink to 52-48 when he arrives. Republican Sens. Lisa Murkowsi of Alaska and Susan Collins of Maine have already announced that they will not vote to confirm a Supreme Court justice prior to the presidential election, nor, presumably, during the lame-duck session if Biden wins the election. (Sen. Collins has been explicit about the latter, and Sen. Murkowski’s statements indicate that she thinks the appointment should be made by whoever is elected president on Nov. 3.)

If Trump loses to Biden and McSally loses to Kelly, then Leader McConnell’s window for getting a Trump nominee confirmed during the lame-duck session appears to be narrow — from Nov. 9 to 23. It could be stretched on the back end into Thanksgiving week, but it may be curtailed on the front end if there is uncertainty about who has prevailed in the presidential election. Controversies and challenges are virtually certain to erupt over millions of mail-in ballots, many of which will arrive after Election Day even if they are postmarked on or before.

Consequently, getting a Trump nominee confirmed would be a very heavy lift. There already are two defections, and McConnell can only afford three before Kelly could arrive around Nov. 30. At that point, there will be no more margin for losses. Given the blistering heat that Democrats and their media allies would turn up against the GOP and Trump’s nominee if the president has lost the election, it seems unlikely, to put it mildly, that there would be no other defections — not even, say, Sen. Mitt Romney of Utah, the lone Republican vote to remove the president at the impeachment trial.

Sen. McConnell’s best bet to get a Trump nominee confirmed is probably to try to do it before the election, which is only six weeks away. Alas, that may also make the GOP’s chance of holding on to the Senate — and thus the party’s ability to block future Biden nominees — more tenuous.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.