| With Ruth Bader Ginsburg recovering from cancer — again — Senate Republicans are being relatively open about their intention to confirm any last-minute Donald Trump nominee to the Supreme Court should a vacancy occur. Even, presumably, if Trump has lost the election and Republicans have lost their majority and they need to rush to do it before the new Congress begins on Jan. 3, 2021. This is neither surprising nor, really, improper. It is, of course, hypocritical; four years ago Mitch McConnell and Senate Republicans invented a principle that presidents should not be able to fill Supreme Court vacancies during an election year, and now they've had to twist and bend that supposed principle in ways that make no sense at all. But hypocrisy isn't much of a political vice. Violating the constitutional order is a serious political vice, but whatever one thinks about what Republicans did in 2016, there's certainly no law and it's hard to argue there's a norm against even a lame duck president and a lame duck Senate filling vacancies. Mostly not, at least. Norms of full disclosure by nominees, followed by Judiciary Committee hearings, followed by a Judiciary Committee vote, followed by floor debate before a final vote might all be violated if a vacancy occurred late enough in the year. I strongly expect that McConnell would be willing to take a nominee straight to the Senate floor without any of that, and if necessary to change the procedures governing floor consideration by majority vote. The more of that that happened (say, if a vacancy occurred on Christmas day and so there was no time for normal consideration), the more improper it would be. Are there constraints? Sort of. The first one is long-term strategic: The more norms McConnell is willing to break, the more Democrats (and of course this is all resting on the hypothetical of a Democratic sweep in the November elections) will be willing to exploit their new majorities without restraint. McConnell has never showed much concern about such things, so I doubt that would slow him down here, but it certainly could have significant consequences. The second constraint is the numbers. Presumably Republicans will hold their current 53-seat majority until the very end of this Congress, but it's not absolutely certain that all 53 would be willing to go along with emergency procedures to seat a new justice after a Democratic landslide. Especially if it meant doing away with hearings and disclosure. I'd say it's likely — very likely — that McConnell could find 50 votes plus the vice president's tie-breaker, but it's not absolutely certain. Remember, in this scenario, quite a few Republican senators would be retiring or would have been defeated; most of them vote with McConnell on such things because they believe it's the right thing to do, and most will care about what Republicans think about them even after they leave office, but it's certainly possible some might act differently without any further electoral incentives. The third constraint? Trump. He's been willing throughout his presidency to cede judicial nominations to the Republican Party, but would he still do so after a November defeat? I don't think any of us can guess exactly how he'll behave, and who he'll seek revenge on, should that happen. It's certainly possible in this scenario that he'll actively want to stick it to the Democrats, or that he'll passively go along with whatever McConnell and those in the party who care deeply about the courts want. But who knows? So, yes, if there is a vacancy, Republicans would probably go ahead even at the very last minute, and to proceed not with a compromise choice such as the one that Barack Obama picked in 2016, but with exactly whichever very young, very conservative candidate they would choose if they win in a landslide this November. But I agree with Scott Lemieux that there are serious limits to how successful any of this could be. A court that acts as a partisan fringe of a minority party isn't going to be able to outmaneuver majorities for very long. So either the court would back off from some of the more extreme doctrines they might otherwise impose, or the new Congress and the new president would fight back. And in that kind of situation, court-packing or other norm-defying measures, especially in defense of democratic practices, would be entirely proper as well. 1. Very good David Karol review of a new book from Rob Saldin and Steve Teles on Never Trumpers. 2. Hanjie Wang, Nives Dolšak and Aseem Prakash on China's recovery plan and the climate. 3. Julia Azari on the Constitution and the court. 4. Aaron Mannes on the vice presidency. 5. Greg Sargent on "October surprises." 6. And my Bloomberg Opinion colleague Cathy O'Neil with an idea about ventilation. Intriguing! | 
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