September 21-25, 2020 This Week's Driving Events RBG's Death a Catalyst on the Left and Right: After the death on Friday of Supreme Court Justice Ruth Bader Ginsburg, President Trump and Senate Majority Leader Mitch McConnell (R-KY) are full steam ahead in filling her seat. A nominee is expected this week, with the top two contenders being Judges Amy Coney Barrett and Barbara Lagoa. The odds are in the GOP's favor for a nominee to be confirmed before the end of the year, with serious implications for outstanding Supreme Court cases and what Democrats would do if they win unified control of government. Powell's Talk is Getting Cheaper: Federal Reserve Board Chair Jay Powell will testify three times on Capitol Hill this week. The Fed's actions at the start of the pandemic went a long way in stabilizing the markets and boosting liquidity, but the politically astute Powell has fewer options in his toolkit to help the recovery in the near term, leaving it up to Congress to pass more fiscal relief. With Vaccine Development Ongoing, Distribution and Cooperation Challenges Loom: With the pandemic ongoing and new hot spots emerging around the country and on college campuses, the Trump administration remains focused on developing a vaccine and continues to release guidance and plans for the yet-to-be approved shot(s). While planning is necessary as distributing a vaccine requires deep coordination and logistical planning, friction has already developed between states and the federal government as the challenges of politicization and vaccine hesitancy linger. RBG'S DEATH IS EARTH (BUT MAYBE NOT ELECTION) SHATTERING: Supreme Court Justice Ruth Bader Ginsburg died on Friday. Fondly (and notoriously) called RBG, she was the most iconic justice for progressives. Not since the death of President Kennedy has a passing rocked the foundations of American politics and society. This may sound hyperbolic, but the implications are hard to overstate. The reverberations may be far reaching for the election, the markets, and our governing institutions. But first things first, can President Trump nominate and Senate Republicans confirm a new Supreme Court justice? Ginsburg's death 46 days before November 3rd is the closest a Supreme Court seat opened up before Election Day since 1864 (a nomination wasn't announced and confirmed until after the 1864 election). On average, it takes about 70 days for a final Senate vote after someone is nominated. Today marks 43 days until Election Day and 104 days until the 117th Congress is sworn in on January 3rd. It's an unprecedented vacancy and there is a clear hypocrisy from Senate Republicans who denied President Obama his nominee, Merrick Garland, in 2016 from a hearing or a vote during an election year. But hypocrisy has little power in DC. Right now, we wouldn't bet against Republicans getting a nominee confirmed, even before the election. This is Senate Majority Leader Mitch McConnell's (R-KY) moment, more so than the other confirmation battles under his leadership. It's one thing for getting Neil Gorsuch confirmed for Antonin Scalia's seat and Brett Kavanaugh confirmed for Anthony Kennedy's seat. But the ideological distance between Ginsburg and a conservative nominee will be vast. He has the opportunity to switch a seat on the Supreme Court from staunchly progressive to conservative, thereby instilling a 6-3 conservative majority that could last for decades. As long-time DC reporter Paul Kane noted, McConnell has two overarching goals in life: a Senate Republican majority and a conservative judiciary. But this is a moment where those goals may come into conflict. Pushing for a confirmation now could jeopardize Republican incumbents like Senators Cory Gardner (R-CO) and Susan Collins (R- ME), and thus, the Senate majority. However, the lasting legacy of a conservative Supreme Court may be worth the price of losing a Senate majority for McConnell. For Trump, a conservative court doesn't matter one iota for him in and of itself. But it matters a great deal for him as he sees coalescing his base as the key to winning reelection. To that end, Trump is expected to announce his nomination this week. At a campaign rally in North Carolina on Saturday, Trump said, "I will be putting forth a nominee next week, it will be a woman." The top two contenders are believed to be Judges Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit in Chicago and Barbara Lagoa of the 11th Circuit in Atlanta. Barrett is a favorite among religious conservatives. She once said "Your legal career is but a means to an end, and. ...that end is building the kingdom of God." Trump once said he was "saving her for Ginsburg." Her Appeals Court confirmation in 2017 was along party lines, with Senator Joe Manchin (D-WV) as the only current Democrat voting for her. Lagoa plays to Trump's penchant for winning Florida. She is a conservative Cuban-American from Miami. She was confirmed to her current seat last year in a broad bipartisan vote. Once Trump announces his nomination this week, the wheels will be set in motion to set up a hearing with the Senate Judiciary Committee and then to line up a vote. With 53 seats, McConnell can afford to lose three Republican votes (although, there's a remote possibility that the margin for error is just two as 51 senators are required for a quorum of the Senate to confirm a nominee if the GOP opposition decides to play hardball, which we view as unlikely). Right now, Senators Collins and Lisa Murkowski (R-AK) are opposed to voting on a nominee. But that still leaves McConnell with a two-vote margin. The other two to watch are Senator Mitt Romney (R-UT) and Senator Cory Gardner (R-CO). Romney sees himself as the anti-Trump institutionalist of the party. However, this is less of a Trump issue; this is being pushed by conservatives and the Republican Party writ-large, two groups where he firmly belongs and does not feel a need to oppose. The decision is purely political for Gardner. But he was already facing an uphill battle in Colorado. Garnder, like so many other Republicans, will have to consider the long- term implications of this vote. Gardner wants to have a future in Republican politics and confirming the nominee while losing his reelection is better for his future than voting against the nominee and losing his reelection. In terms of timing, McConnell and Trump would like to get the nominee confirmed before Election Day, but it's very possible it won't happen until the lame duck session. Senator Roy Blunt (R-MO), a member of the GOP leadership team, yesterday said "Everything will have to get done pretty precisely," for a vote to be held before Election Day. But a challenge for McConnell is that he may be down a Senate seat as early as November 30th. That's because the Arizona Senate race is classified as a special election to finish the final two years of the late John McCain's term. If Democrat Mark Kelly wins the race against Senator Martha McSally (R-AZ), he could be sworn in by the end of November, according to Arizona election lawyers. This won't matter if only Collins and Murkowski defect, but a lame duck where Trump lost his reelection and Senate Republicans lost their majority could put added pressure on Romney to hold off on a vote. Then there is the question of what, if anything, Democrats can do to stop this. Right now, there's little Democrats can do to directly stop the vote. In an interview yesterday, House Speaker Nancy Pelosi (D-CA) said she's "not ruling anything out" and will "use every arrow in our quiver." She did not rule out the possibility of impeaching Trump again or Attorney General Bill Barr. Impeachment could theoretically hold precedent on the Senate floor, thereby delaying a Senate confirmation vote. However, one impeachment expert said this tactic wouldn't slow the Senate down. Senate Democrats are threatening future action on the Senate filibuster and the number of Supreme Court seats if Republicans go ahead with the vote. Senate Minority Leader Chuck Schumer (D-NY) over the weekend said, "Let me be clear: if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year." Of course, Schumer already used the phrase "nothing is off the table" before Ginsburg's death about what Democrats would do if they won the majority. Such a threat is unlikely to dissuade Republicans. But there is an increased prospect that the threat could become a reality if this confirmation pushes moderate Democrats to being open to a rules change on the filibuster, and thus on hot button issues like expanding the size of the Supreme Court or admitting new states into the US (i.e. D.C. or Puerto Rico) that would only require a simple majority vote. More broadly, a Senate rules change on the filibuster will open the door to a whole host of progressive policy priorities (although 50 votes will still be needed). The electoral implications of Ginsburg's death and the Republican push to fill the seat remain unknown for now. This certainly qualifies as the September/October election surprise that could theoretically change the trajectory of the race. However, given the historical steadiness of the election in a historic year of events (e.g., impeachment, Covid-19, recession), it's good to be skeptical of anyone saying this creates a major change in the race.