The death of Supreme Court Justice Ruth Bader Ginsburg injects another layer of controversy into an already contentious presidential election, as the composition of the nation’s highest court hangs in the balance.
Ginsburg, nominated by President Bill Clinton in 1993, was an anchor of the court’s liberal bloc. Her passing while a Republican sits in the White House less than 50 days out from the election sets the stage for a brutal confirmation hearing. President Trump and Senate Majority Leader Mitch McConnell have given every indication they would attempt to fill any Supreme Court vacancy that occurred this year, though they could face Republican defections.
John Malcolm, vice president for the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies at the conservative Heritage Foundation, predicted that a post-Ginsburg confirmation battle would make Justice Brett Kavanaugh’s hearings look like a “pillow fight.”
“Going from Anthony Kennedy to Kavanaugh is akin to going from Sandra Day O’Connor to Sam Alito,” he said. “Going from Ruth Bader Ginsburg to [a Trump nominee] is akin to going from Thurgood Marshall to Clarence Thomas.”
“My most fervent wish is that I will not be replaced until a new president is installed,” Ginsburg, 87, was quoted as saying in a final statement before her death. A similar situation unfolded when Justice Antonin Scalia, a leading conservative, died during the 2016 campaign.
Ginsburg’s death also increases the importance of the Supreme Court to both liberal and conservative voters ahead of the November election. An August Pew Research poll found that 64% of registered voters listed “Supreme Court appointments” as a top issue for them, good for third place, behind the economy and healthcare, and 2 points ahead of the coronavirus outbreak.
White evangelicals, a crucial Republican voting bloc that Trump carried with 81% of the vote in 2016, care deeply about the composition of the court as it affects issues such as abortion and religious liberty even more than the partisan makeup of the Senate. Abortion rights supporters and LGBTQ activists, who tend to support Democratic candidates, will be equally mobilized by this vacancy. Ginsburg was viewed as a feminist icon.
Trump and McConnell have made reshaping the federal judiciary along conservative lines a key part of their shared legacy. The filibuster for Supreme Court nominees was eliminated in 2017 to secure the confirmation of Justice Neil Gorsuch, Trump’s first pick. Trump had already announced a list of people from whom he would select his next high-court nominee. Apparently unaware that Ginsburg had died, Trump joked that one person on the list, Texas Republican Sen. Ted Cruz, would be unanimously confirmed because his colleagues would enjoy seeing him depart from the Senate.
When Scalia died in an election year, Senate Republicans blocked President Barack Obama’s nominee to replace him, Judge Merrick Garland, for the rest of the year. The McConnell-led chamber did not even grant Garland a hearing. Senate Minority Leader Chuck Schumer, a New York Democrat, has already called for a Trump nominee to Ginsburg’s seat to receive similar treatment. McConnell vowed, “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Republicans still control the Senate 53-47, and without the filibuster, Democrats have little recourse. Several vulnerable GOP senators seeking reelection this year, including Sen. Cory Gardner of Colorado and especially centrist Sen. Susan Collins of Maine, would be hard-pressed to vote for a Ginsburg replacement before the presidential race is decided. Sen. Josh Hawley, a Missouri Republican, has said he will not vote for a nominee who has not explicitly said the Roe v. Wade decision legalizing abortion was wrongly decided.
California Sen. Kamala Harris, the Democratic vice presidential nominee, sits on the Senate Judiciary Committee and would have a role in grilling any Trump pick. Democratic presidential nominee Joe Biden chaired the panel when the Senate rejected Ronald Reagan’s choice of Robert Bork to sit on the Supreme Court in 1987 but narrowly confirmed Clarence Thomas in 1991.
Biden said in 1992 that a Supreme Court vacancy should not be filled in an election year. “Mr. President, where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not, and not, name a nominee until after the November election is completed.”
Biden added that if the president nominated someone anyway, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” The president at the time was a Republican, and Biden was a Democratic senator from Delaware. McConnell later called this the “Biden rule” while blocking Garland.
Biden has not provided a list of possible Supreme Court nominees should he be elected in November. If another conservative justice is confirmed, some liberals advocate Biden and a Democratic-controlled Senate eliminating the legislative filibuster and then passing “court-packing” legislation to create additional liberal seats on the nation’s highest court.
