As 2020 continues to twist and turn, we now find ourselves in a similar situation to 2016 where a Supreme Court justice has died, and the appointment of a replacement has become a presidential election issue. With Justice Ruth Bader Ginsburg’s (RBG) passing on Friday, Republicans, and Democrats, see the replacement of one of the court’s most staunch liberals as a top election issue.
For President Trump, having yet another Supreme Court vacancy to convince some skeptics that voting for him is a vote to put another conservative on the court could be what he needs to prevent hemorrhaging key groups, such as evangelical Christian voters. There isn’t much Democrats can do right now to prevent Trump from naming a justice, or prevent the Senate from confirming him or her except point out Republican hypocrisy on the issue.
Back in February of 2016, when Justice Antonin Scalia passed away, President Obama selected Judge Merrick Garland as a replacement. Using his powers as Senate Majority Leader, Republican Mitch McConnell prevented the confirmation from ever moving forward, keeping the seat open until after the election when Donald Trump eventually won the White House and Republicans retained the Senate. Thus, Justice Neil Gorsuch became President Trump’s first Supreme Court pick to be nominated and confirmed replacing Justice Scalia.
At the time, McConnell argued that because the Senate and Presidency were held by different parties, the voters should decide. This time, however, McConnell was first out of the gate to announce he would push for President Trump’s nominee to replace Ginsburg and guaranteed a vote for the new nominee on the Senate floor:
“President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell, a Kentucky Republican, said in a statement Friday evening that sets GOP lawmakers on a collision path with Democrats, though the exact timing of such a fight — in particular how much of it would happen ahead of or after Election Day — was not immediately clear.
Senate Majority Whip John Thune, the number two GOP senator, backed McConnell, saying in a statement of his own, “I believe Americans sent a Republican president and a Republican Senate to Washington to ensure we have an impartial judiciary that upholds the Constitution and the rule of law. We will fulfill our obligation to them. As Leader McConnell has said, President Trump’s Supreme Court nominee will receive a vote on the floor of the U.S. Senate.”
Whether Donald Trump wins in November or whether Republicans hold the Senate could be irrelevant if a vote happens anytime before inauguration day in January of 2021. President Trump could nominate a replacement this week, the Senate could take up hearings, and vote before or after Election Day and the seat would be filled.
Democrats, as would be expected, are outraged at the thought of Republicans moving forward so close to an election after the antics pulled just four years ago:
Democrats slammed President Trump’s efforts to ram through a nominee for the Supreme Court vacancy created by the Friday death of iconic Justice Ruth Bader Ginsburg.
“To jam this nomination through the Senate is just an exercise in raw political power, and I don’t believe the people of this nation will stand for it,” Democratic presidential nominee Joe Biden said Sunday in Philadelphia.
“If we go down this path, I predict it will cause irreversible damage,” he continued. “The infection this president has unleashed on our democracy can be fatal. Enough, enough, enough.”
The response has been so forceful that some liberal opinion writers are suggesting that Democrats should expand the court if they win by adding more justices, presumably all liberals:
Democrats have only one play here: If Trump and McConnell jam an appointee through, it is not enough for Democrats to raise hell about the hypocrisy, the duplicity and the Republican refusal to play by McConnell’s own rules. It is not enough to target every Republican senator who goes along. It is not enough to have voters bombard their Republican senators’ offices with phone calls and protests. Because those things have been happening for four years, and none of them have persuaded the GOP to put the stability of the country or the obligations of office ahead of that party’s thirst for power.
So Democrats should threaten to pack the court. And, if McConnell pushes through a new justice and then Joe Biden wins, they should follow through.
“Court-packing,” as it’s known, became an issue during the presidency of Franklin D. Roosevelt. President Roosevelt at the time pushed a legislative proposal known as the Judicial Procedures Reform Bill of 1937 which would have expanded the court to add more justices in the interests of Roosevelt garnering more favorable rulings for more New Deal plans which were previously ruled unconstitutional. Ultimately, the legislation never passed and the court remained at nine justices as it does today.
Republicans and Democrats have both flip-flopped on the issue of election-year Supreme Court vacancies, usually leaning toward whichever view favors them at the time.
In 1992, for example, Joe Biden argued against filling a Supreme Court seat during an election year, criticizing President George H. W. Bush at the time:
“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. … Once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”
By 2016, however, when President Obama was in the White House ready to replace Justice Scalia, Biden had changed his tune, as the New York Times noted:
Several elements of the old Biden speech are problematic for Democrats, most notably his position at the time as the chairman of the Senate Judiciary Committee, making him the party’s voice on the handling of judicial nominations. The comments are also directly at odds with what President Obama and Mr. Biden, now the vice president, have been saying in demanding fair consideration for any nominee after the death of Justice Scalia on Feb. 13.
On Minnesota Public Radio last week, Mr. Biden said that “to leave the seat vacant at this critical moment in American history is a little bit like saying, ‘God forbid something happen to the president and the vice president, we’re not going to fill the presidency for another year and a half.’ ”
The truth is that neither party has been entirely consistent on the issue, and both parties are seeking to move in their own interests. Republicans, however, once again have the upper hand on the matter by still controlling the Senate in 2020, as they did in 2016. By that account, the most powerful man in Washington right now is not President Trump, it’s Mitch McConnell.
Not all Republican Senators are on board with a vote before next year with at least two saying that believe a replacement for Justice Ginsburg should not be named or confirmed until 2021:
Already, Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine have said that there is not enough time to confirm someone before November.
Collins told The New York Times earlier this month that she’d oppose seating a nominee in a lame-duck session if Joe Biden wins the White House.
It’s unclear if more Republicans would break ranks.
What about the presidential election itself? What does it mean for the Trump-Biden battle in terms of energizing voters? In 2016, exit polling suggests that the vacancy of another Supreme Court seat could help solidify Republican support for Trump:
One of the most underappreciated reasons that Donald Trump won the 2016 election was voters motivated by a vacancy on the Supreme Court.
One in five voters told CNN in an exit poll that the Supreme Court was one reason they had cast a ballot. Of the voters who said it was the “most important factor” in their decision, 56 percent voted for Trump. According to the Washington Post, 26 percent of all Trump voters polled said that the Supreme Court was the basis of their decision.
This certainly isn’t to say that Democrats don’t see the court as an important election, but perhaps a string of key victories over the past decade has softened the issue for liberals. When the court ruled in favor of President Obama on the Affordable Care Act, for example, Republicans knew they had more work to do before the court could become reliably conservative in a 5-4 or 6-3 split. Chief Justice John Roberts has tended to side with the liberal wing of the court on polarizing issues in an effort to avoid 5-4 conservative rulings in favor of narrowly-tailored liberal rulings that give the court less of an ideological appearance. For all of Roberts’ intentions, however, the Supreme Court remains a “super-legislature” in the eyes of most of the country.
As a result, conservative court-watchers have noted that even with President Trump’s two selections, Justice Gorsuch and Justice Kavanaugh, which clearly made the court more conservative, another conservative justice is needed to start overriding Justice Roberts and nullify his swing vote status which often benefits the liberal wing of the court.
The big elephant in the room is the question of abortion, an issue which has remained white-hot since the original Roe v. Wade ruling in 1973. If Justice Ginsburg, one of the courts most ardent defenders of abortion rights is replaced with a more moderate justice, then it’s plausible that the days of Roe v. Wade as “law of the land” could be in question.
This issue alone could drive record turnout in 2020 among both parties who see the Supreme Court suddenly becoming a top election issue as Coronavirus and the economy get knocked down the list.