Ruth Bader Ginsburg – what will her death mean for 2020 and the Supreme Court?

By Richard Hansen

JUSTICE Ruth Bader Ginsburg, the opera-loving judicial firebrand diva who became a legal, cultural and feminist icon well into her 80s, died on Friday.

The US Supreme Court announced her death stating the cause was complications from pancreatic cancer. She was 87.

Ginsburg not only reshaped U.S. jurisprudence — in particular, as an advocate for women’s rights — but she became a cultural and political icon too, especially for liberals and progressives.

The court released a statement saying Justice Ginsburg died at her home in Washington DC surrounded by her family.

“Our nation has lost a justice of historic stature,” Chief Justice John Roberts said. “We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tireless and resolute champion of justice.”

Ginsburg, nominated by President Bill Clinton in 1993, was confirmed by a Senate vote of 96 to 3 and rose to become the Supreme Court’s prominent member.

Her death will inevitably set in motion a nasty and tumultuous political battle over who will succeed her, and it thrusts the Supreme Court vacancy into the spotlight of the presidential campaign.  

Just days before her death, as she grew weaker, Ginsburg dictated this statement to her granddaughter Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”

But what could this mean for the 2020 election? And for the future direction of the Supreme Court?

Ginsburg’s death is one of the biggest developments yet in 2020, a year that has already included the impeachment of the sitting president, a deadly virus killing nearly 200,000 Americans and an economic collapse.

Her death will have a number of political implications, some of which will become clearer in the coming days and weeks, with the election only 46 days away here’s a first look at what those implications may be.

Republicans have to decide whether they will break from their “no election year confirmations” stance from 2016

In 2016, Senate Republicans blocked the nomination of then-President Barack Obama’s Supreme Court nominee, Merrick Garland, by denying him a confirmation hearing and vote.

Republican Senate Majority Leader Mitch McConnell argued that voters should get to choose the president and that president should get to pick the next justice. Then-Justice Antonin Scalia died in February 2016, and Obama nominated Garland that March.

McConnell has already stated publicly that “President Trump’s nominee will receive a vote on the floor of the United States Senate”. A statement derided as the height of hypocrisy by Democrats who are  suggesting that the winner of the election should choose the next justice.

Ginsburg’s death comes even closer to the 2020 election — 46 days away. In all American history, there have only been two Supreme Court vacancies closer to Election Day. In both instances, the incumbent president won re-election and nominated a replacement shortly after Election Day.

So, by historical standards, and McConnell’s own previous standard, Trump should not nominate anyone unless he won a second term in November, since the election is less than two months away.

This is a huge opportunity for Republicans, to have six GOP-appointed judges on the court at once. It is hard to imagine they will pass it up. It is not certain that 49 of the other 52 Senate Republicans would push forward and support a Trump nominee, particularly if Trump lost the election, but it seems likely.

This is especially true if this confirmation process is undertaken in the lame duck session – a congressional session held traditionally between an election and a new congress taking office, where lame duck Republicans who have lost their seats have nothing to lose.

Will a confirmation hearing help or hinder Trump and other the Republicans election chances?

This situation is somewhat paradoxical. If Senate Republicans confirm a replacement or are well on the way to confirming one by Election Day, then the Trump base will already be satisfied.

His evangelical base is particularly motivated by conservative judicial appointments so may lose the fervour to turn out and vote for Trump if they are already going to get what they want beforehand.

A quick confirmation could in fact hurt Trump so he may want the carrot of an appointment to still be motivating voters on Election Day.

If this happens it may have other consequences for the future of the court, but it could swing votes awa from Trump as voters go back to looking at Coronavirus response disasters, and Trump’s other Presidential failures.

Trump is struggling in particular with women voters. He may pick a woman to replace Ginsburg and make his nominee part of his pitch to women voters.

Similarly, he may pick a woman of colour or perhaps someone more moderate than he otherwise would have. This could improve his electoral standing among certain demographics.

Biden would also need to talk about judicial issues more and perhaps describe the kind of person he would put in this seat. His campaign thus far has focused primarily on President Trump’s character flaws and his failure to respond to the pandemic successfully.

Biden has already promised to nominate a Black woman in the event of a Supreme Court vacancy if he becomes president.  Also, Democratic vice-presidential nominee Kamala Harris is on the Senate Judiciary Committee, so she would be involved in any kind of confirmation process.

This is also a big issue in Senate races. Republican incumbents like Sen. Martha McSally of Arizona and Sen. Susan Collins of Maine may have to choose between irritating GOP voters if they oppose a Trump pick or irritating more moderate voters if they back someone who is viewed as too conservative.

A rock and a hard place. This is a particularly acute issue for Collins, who is struggling in her re-election campaign in part because she backed Trump Supreme Court nominee Brett Kavanaugh in 2018 which ultimately secured his confirmation.

A savvy advisor might advise Trump to say who he intends to appoint but have him hold back from officially doing so in order to use that promise as a way of getting turnout from his base, they could try to suggest he takes “two bites at the apple”.

Objectively a dirty trick, but this would allow Trump to hold off until the election as a base-turnout generator, and then if he loses, make the nomination anyway after and try to get it through congress in the lame duck session.

Ginsburg’s death creates new dynamics if there is an election-related dispute before the court in 2020.

With a 5 to 4 GOP majority, Chief Justice John Roberts has been a swing vote, and one who occasionally joins with the Court’s Democratic appointees.

Whether the court is 5 to 3 (with Ginsburg’s seat not filled) or 6 to 3 (with a Trump nominee seated), Democrats would need two votes from GOP-appointed justices to win a case. Therefore, if there is an electoral dispute that gets to the court, that’s bad news for Democrats.

It raises the prospect of a 4-4 tie in a pivotal election-related case, a potential deadlock that could complicate knowing who won the presidential race and ensuing constitutional crisis.

If no winner is decided by January 20th, then Democratic speaker of the House Nancy Pelosi could become acting President. She, in theory, would be free to make judicial nominations and perhaps a newly Democratic controlled Senate could confirm them.

Image: FiveThirtyEight

If there are six GOP-appointed justices on the Supreme Court, law in America could fundamentally move to the right.

This is perhaps the most important implication. If Trump can appoint a justice who is similar in ideology to his previous picks Neil Gorsuch and Brett Kavanaugh then abortion and affirmative action are likely to be extremely limited in the future.

It seems likely that Obama’s Affordable Care Act would be overturned, and several other conservative rulings handed down.

This situation would undoubtedly trigger an apocalyptic Democratic response who may even look to increase the number of Supreme Court seats if they win the Presidency and control of the Senate.  

There is nothing in the constitution which mandates the number of Supreme Court seats. It could make up for the Garland seat loss and rebalance the court.

I would expect these ideas would gain a large amount of traction within progressive circles if Trump puts another conservative justice on the court before, or right after he loses a presidential election.

Featured Image: Supreme Court of the United States (Public Domain)

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