Ruth Bader Ginsburg Dies, Setting Up Epic Battle for Supreme Court Replacement

Posted on 09/19/2020 9:45 AM

Trump wants to move 'without delay', says he will pick a woman and wants vote before Nov. 3 elections



Ruth Bader Ginsburg, the second woman to serve on the Supreme Court and an iconic advocate for gender equality, died Friday evening at 87. Ginsburg was the seniormost member of the Supreme Court’s four-member liberal bloc, setting up a fierce battle as a Republican president and Senate are expected to try and fill her seat.


We now have another historic event in a year of them, including impeachment, a global pandemic, an economic crisis, the national debate about racism and high-profile instances of violent protests. Now add a major fight ahead for a new Supreme Court justice.


Senate Majority Leader Mitch McConnell (R-Ky.) announced that if President Trump nominates a replacement, the vote would be held — although he didn’t say whether that vote would come before the election or afterward in a lame-duck session.


Democrats immediately accused McConnell of hypocrisy: “The American people should have a voice in the selection of their next Supreme Court Justice,” Senate Minority Leader Chuck Schumer (D-NY) said, quoting a 2016 statement from McConnell: “Therefore, this vacancy should not be filled until we have a new president.” McConnell responded that the election-year precedent he upheld in 2016 only applies when the White House and the Senate are controlled by different parties.


Ruth Bader Ginsburg stood for all of us. She fought for all of us,” Biden said in a statement mourning her passing. He also drew the battle lines for the coming fight to succeed her: “The voters should pick a president,” Biden said, “and that president should select a successor to Justice Ginsburg.”


President Trump, in a Saturday tweet, wrote: “We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!”


Trump said Saturday that he will nominate a woman in the next week to fill Justice Ginsburg’s seat on the Supreme Court. At a rally Saturday night in Fayetteville, N.C., Trump told supporters that he had not yet chosen a nominee, but “it will be a woman, a very talented, very brilliant woman.” The crowd chanted “Fill that seat!” As he was leaving the White House on Saturday evening, Trump said that an announcement could come within a week and that he prefers a Senate vote before the election.


Trump recently unveiled a list of candidates from which he would pick a new Supreme Court Justice. His Democratic rival, Joe Biden, now will be under pressure to match that step. With a long list of potential picks from Trump, there should be little delay in settling on a name. One favorite is Amy Coney Barrett, a judge on the Seventh Circuit Court of Appeals.


Many say a vote is unlikely to take place before the Nov. 3 election based on the average timeline to announce, hold hearings and approve a new Justice. It has taken an average of 74 days to confirm the last 10 justices appointed to the Supreme Court, ranging from 99 days for Clarence Thomas in 1991 to 50 days for Ginsburg in 1993. But as Trump noted Saturday, he prefers a Senate vote before the election. 


McConnell can only afford three defections (VP Pence would break a 50/50 tie vote) on what would be one of the most controversial Senate votes in history. However, if Mark Kelly beats Martha McSally in Arizona, he could be sworn in at the end of November, altering the tight majority that McConnell has to work with. It would then be 52-48.


Impacts. It raises the question of the size and shape of a Supreme Court that might be called upon to settle disputes over the outcome of this fall’s presidential election. With a 6-to-3 conservative majority on the Supreme Court, conservatives could secure power over the levers of government for decades, or at least until potential major changes in the number of Supreme Court justices if Democrats win the White House and the Senate.


McConnell wrote his fellow Republican senators Friday night in a “Dear Colleague” and urged caution in how they answer questions about voting on RBG’s replacement: “This is not the time to prematurely lock yourselves into a position you may later regret. ... I urge you all to be cautious and keep your powder dry until we return to Washington.”


Here are the GOP senators to monitor relative to what is expected to eventually be a vote on a new Supreme Court member, with the initial three being the most important:


Sens. Lisa Murkowski (R-Alaska): Previously said she would oppose attempting to fill a Supreme Court vacancy right before the November election or during a lame-duck session in December. A clear no vote.


Susan Collins (R-Maine): A key centrist vote in the Senate, Collins said Saturday that the Senate should not vote to confirm late Justice Ruth Bader Ginsburg’s successor before the election and the nominee should be chosen by whoever wins on Nov. 3.


Sen. Mitt Romney (R-Utah): Always an iffy vote for Republicans on sensitive issues, Romney declined earlier this year to say what he would do if a Supreme Court seat became vacant before Election Day. “I’m not at a point where I have something to say,” he said.


Sen. Cory Gardner (R-Colo.): In a close re-election battle, Gardner would likely want a lame-duck session vote.


Sen. Steve Daines (R-Mont.): While in a close re-election contest, he may want a post-Nov. 3 vote, but he is seen as a reliable vote for a conservative appointment to the Court.


Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.): Graham in July said that it would depend on where members of the Senate GOP conference stood on the question. Graham said he’d be “willing” to fill a vacancy, but cautioned: “I’d like to get input from my colleagues.” However, Graham on Saturday blamed Democrats for eliminating the filibuster (for lower court judges, in 2013) and for conspiring “to destroy the life of Brett Kavanaugh and hold that seat open.” Consequently, Graham said, he would back Trump “in any effort to move forward” to fill the Ginsburg seat.


Sen. Chuck Grassley (R-Iowa): Eventually he is expected to come around and approve any Trump appointee.


Sen. Thom Tillis (R-N.C.): Behind in recent polls for re-election, Tillis' conservative credentials will be on trial based on his comments about the coming vote.


Bottom line: No Republican can vote no on the nomination and expect a political future beyond potentially Murkowski and Collins. The politics of this issue is complex, with both sides, of course, saying it favors them relative to galvanizing their groups to vote. History shows the Supreme Court as a topic is more a Republican issue rather than one for Democrats, but should a vote occur before a new Congress in 2021, many think Democrats, if they control both the White House and Senate, will “pack the court” with more justices and implement other aggressive moves regarding statehood for D.C. and Puerto Rico, to affect the balance of power in the Senate. If the process of debating and voting on a new Supreme Court justice takes at least a month, some election experts say it’s likely that tens of millions of voters will have already cast ballots before a Senate confirmation vote takes place. That could dampen the political impact in either direction.




Add new comment