The one thing no one is talking about that could derail Mitch McConnell’s attempt to fill the Supreme Court seat

| 9:09 am EDT September 21, 2020
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The battle over Ruth Bader Ginsburg’s Supreme Court seat is a complex one with a number of fast-moving parts and conflicting goals, even within the GOP Senate. And with the Democrats making unprecedented threats about expanding the court, Mitch McConnell is facing a complicated equation. Anyone who thinks they know for certain how it’s going to turn out is being wildly overconfident in their predictive abilities.

For instance, what if McConnell concludes that his best chance of retaining majority control over the Senate is to keep the seat open until after election day? He could try to ram through a nomination during the lame duck session. This would be an extraordinarily unpopular move, and if he loses the Senate majority anyway, the Democrats could simply expand the court in 2021. But here’s the thing about the lame duck period: by then, Donald Trump could have a very different agenda.

New York already has a widely documented grand jury in the process of indicting Donald Trump on state charges for his financial crimes. If he loses the election, he’s going to end up being criminally charged and put on trial – and no president can pardon him on state charges. So if Trump loses, he’s going to spend the transition period scrambling to try to figure out how to negotiate a leniency deal, or otherwise get himself off the hook.

At that point Donald Trump would have his hands full trying to save his own life, and he would have zero remaining interest in trying to ram through an illegitimate Supreme Court nominee in the face of what would be fierce nationwide pushback. If Trump abandoned the nomination battle in favor of focusing on his own rapidly collapsing life, McConnell would have an even harder time pulling it off without him.

This is only one possible scenario, of course. But if Mitch McConnell thinks he can merely wait until the transition period and then pull a fast one, he has to consider that by that time, Donald Trump’s focus and interests could be entirely elsewhere.