Ruth Bader Ginsburg, Associate Justice to the United States Supreme Court, died this past Friday after a long fight with pancreatic cancer. Ginsburg, who had been appointed by President Bill Clinton in 1993, was something of a liberal bulwark on the court, having taken up fierce stances on equal rights and abortion. Ginsburg was the second woman in U.S. history to serve on the supreme court. She was 87 years old.
The Supreme Court is the highest court in the land and has appellate jurisdiction over all state and federal court cases, the power to invalidate legal statues found to be unconstitutional, and the ability to strike down Presidential directives.
But as the nation mourns the passing of such an important stakeholder in our republic politicians are scrambling over who will replace Justice Ginsburg and whether her replacement should be the prerogative of President Trump or the winner of the November Presidential election. While it is the constitutional right of a sitting president to appoint a Supreme Court justice in the final year of their presidency, many politicians and political scientists believe that to do so is unfair to the American people.
In these rare moments in our history, the political consensus has been that the sitting president, who could be elected out of office by the American people in the quadrennial elections, should not be given the opportunity to make an appointment to the court that will shape the outcome of legislation for decades to come. Ultimately, the U.S. Senate is responsible for passing nominations to the court.
In this case, Senator and majority leader Mitch McConnell could bring President Trump’s nomination to the Senate floor. And with a simple majority vote during a “lame duck” session after the election, the appointee would take the bench.
But in a year like 2020, it’s no surprise that there’s a twist.
Several influential Senators, among them Lindsey Graham and the majority leader himself, had blocked an Obama appointee in 2016. They had argued that such an appointment should be made by the next president so as to accurately represent the wishes of the American people writ large.
According to several reports, Senator Graham reversed his position on Saturday, citing the bitter battle surrounding the nomination of Justice Brett Kavanaugh, and the subsequent 50-48 senatorial vote as his reason.
Several Republican Senators, Mitch McConnell among them, are up for re-election this fall. While the pressure of re-election could outweigh the desire to support their party leader’s appointment, so far, only one Republican Senator, Susan Collins of Maine, has voiced anything close to dissent.
“In fairness to the American people, who will either be re-electing the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on November 3rd,” Senator Collins said on Saturday.
Another Senator who could tip the odds in favor of a Democratic block of a potential Trump appointee is Mitt Romney of Utah. Senator Romney gained the political spotlight when he broke ranks with his fellow Republicans and voted in favor of the President’s impeachment in February of this year. While Romney hasn’t officially stated whether or not he would support the President in his nomination, his newfound cache could make him an important piece of the political morass that is sure to mire the Senate in the coming weeks.
President Trump has been absolute about his intentions. In statements he made to the press on Saturday evening, the President said he would work to make an appointment in the next week. If the Republican majority in the Senate holds, the approval of President Trump’s nominee could be a simple matter.
But political analysts are already marking the delicate nature of this moment. There are 35 Senators facing re-election in 2020. Among those 35, at least six are Republicans facing tough races. For those Senators, the decision to back or block the President’s Supreme Court nominee could mean losing to Democratic challengers, especially in “toss-up” states like Maine, Colorado, Iowa, and Georgia.
President Trump could endeavor to court more women voters with a female appointee — a move he has already said he would likely make — while Biden, will try and battle at the Senate alongside his VP pick Senator Kamala Harris. Biden will call on Senators to replicate the decision that the Republican Senate made in 2016 and grant the appointment to whoever wins the November election. President Trump will count on that same Republican majority to walk his appointment to the bench.
The Senate, where Republicans hold a 53-47 (technically 45 Democrats and two Independents) majority, is slated to hold its next session just weeks after the election. Should the Senate be split, Vice President Pence will have the swaying vote.
Whichever course unfolds, there are already rumblings that this appointment — and who will get to make it — is more important that who wins in November.
But possibly even figuring out the winner on election day could be chaotic. In 2000, confusion over vote tallying methods in Florida led to the Supreme Court’s involvement. The Supreme Court ruled that the original vote certification should stand, thus awarding Bush Florida’s 25 electoral votes and granting him 271 electoral votes, one more than is required to win the college. The decision sparked protests and undermined President Bush’s first months in office.
Experts and media alike are already predicting confusion in the 2020 general election. The Trump administration has predicted mass fraud owing to mail-in ballots. At the same time, the liberal media has already started taking shots at voting safety, saying that the threat of coronavirus will dampen voter turnout and skew the results in Trump’s favor. Both candidates are already preparing the American people for the possibility of a count lasting weeks or months.
If an election decision were to be sought from the Supreme Court, with a Trump appointee in place, it’s likely that many Americans will accuse the President of having engineered the court to ensure his second term. On the other hand, should the court, with a Trump-appointee on the bench, make a decision in favor of Biden, Senate Republicans would go to war. Even worse, should a Trump appointee get blocked by a bipartisan Senate vote, an eight-member court could have to intervene and could, potentially, be split.
In such a case, the decision would revert back to the State court level. And should vote-counting cases be under adjudication in multiple States, things could get hairy. In summary, a Supreme Court split could unstitch the country and leave the American people leaderless, or worse yet, with two leaders vying for the most powerful seat in the free world.