Returning to Air Force One after a campaign speech in Bemidji, Minnesota, President Trump learnt of the passing of Associate Justice Ruth Bader Ginsberg from the media pool. Responding to journalists, he said:
“She led an amazing life. What else can you say? She was an amazing woman, whether you agreed or not, she was an amazing woman who led an amazing life. I’m actually sad to hear that.”
It is true that we all must acknowledge the incredible life Justice Ginsberg led. From not getting a job after law school due to her gender, to the multiple cases she spearheaded, and then the numerous memorable judgments while on the bench of the Supreme Court, Ginsberg led a life like non other. The second woman on the bench, being nominated by President Clinton in 1993, she became the leader of the liberal wing of the Court, being extremely vocal on women’s rights and gender equality.
She oversaw gender equality becoming a constitutional right (United States v Virginia 1996) and the legalisation of same-sex marriage (Obergefell v Hodges 2015). She also dissented against the Florida recount in the 2000 presidential election (Bush v Gore 2000) and challenged the majority when they “gutted” the Voting Rights Act (Shelby County v Holder 2013). Outside of the Court, her efforts led to legislators enacting fair pay laws (the Lilly Ledbetter Fair Pay Act). Her death leaves a large void in the court and the wider American judicial landscape.
With the Supreme Court a divisive object in politics, her demise will now have major ramifications on the future balance of the Court along with impacting its long-term trajectory in the determination of matters. However, the biggest role this will play in the short-term will be on the presidential election, with Supreme Court appointments traditionally being heated debate topics. This will just make this unorthodox election more polarising, adding a level of complexity to the issues voters will reflect on while also potentially bringing out more voters for either side in an attempt to preserve the Supreme Court’s ideological leanings for a generation.
Recent appointments and the Court’s balance
Of the eight justices remaining on the Court, there are five conservatives and three liberals. Justices Elena Kagan, Sonya Sotomayor, and Stephen Breyer form the liberal wing while the conservative wing consists of Kavanaugh, Gorsuch, Samuel Alito, Clarence Thomas, and Chief Justice John Roberts. However, various studies have places both Roberts and Kavanaugh close to the centre, pointing to them as the new swing justices.
The appointment of a conservative would be the biggest ideological tilt for the Court in around 50 years. While Republicans have appointed 14 of 18 justices since 1969, they have not all been conservatives. Sandra Day O’Connor, Anthony Kennedy (both appointed by Ronald Reagan), and David Souter (appointed by George HW Bush) were moderates and acted as swing votes on the Court. However, the appointment of a conservative would mean the Court turns solidly to the right for a significant period.
Déjà vu – history is repeating itself
You would be forgiven if you felt history was repeating itself. As mentioned already, the Republican Senate refused to hold a vote on Obama’s nominee to fill the seat left vacant by Antonin Scalia after his death in February 2016. In a statement, Senate Majority Leader Mitch McConnell said:
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
Mitch McConnell refused the vote, and this left the seat open until the following April when Gorsuch was appointed after being nominated by President Trump. Garland’s nomination expired on the end of the 114th US Congress on 3 January 2017.
This is the main issue for Democrats. Only four short years ago, McConnell used similar circumstances to block a nomination. When he went on Meet the Press on 3 April 2017, McConnell said to host Chuck Todd:
Everyone knew, including President Obama’s former White House counsel, that if the show had been on the other foot, they wouldn’t have filled a Republican president’s vacancy in the middle of a Supreme Court, in the middle of a presidential election. So that clearly was not going to happen, even if the roles had been reversed.
McConnell spent a large portion of 2016 and early-2017 defending his position, fighting ferociously for the policy that presidents should not be allowed to nominate justices in their final year. Ironically for this situation, McConnell went on to refer to this as the ‘Biden Rule’. It was claimed that Biden made this rule in June 1992 when then-Senator Biden argued President Bush Sr should wait until after the election to name an appointee should he be re-elected.
You would expect that McConnell would not allow a vote on a replacement, especially since the election is a month-and-a-half away. But instead he has pressed ahead, not even waiting an appropriate amount of time till after Ginsberg’s death. No, it was in his tribute to Ginsberg in which he wrote:
In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.
By contrast, Americans re-elected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.
President Trump’s nominee will receive a vote on the floor of the United States Senate.
It is utterly disappointing to see this in a tribute right after the death of the long-serving and highly admired justice. Nevertheless, McConnell has caught himself in between a rock and a hard place. His words and actions from 2016 are now going to haunt Trump in the nomination of another Supreme Court justice.
Logistics – Not should but could it occur?
There are 44 days left until the presidential election. 1056 hours. A little over 6 weeks. The question here is not whether McConnell should push through a nomination but if he can do it before the election.
Let us look to Gorsuch’s appointment. He was nominated by Trump on 31 January 2017. A vote took place on 7 April, with a vote of 54-45. His process comprised of 66 days, with hearings in late-March. Senate Minority Leader Chuck Schumer sought to filibuster the nomination, but the Republicans invoked the nuclear option and abolished the filibuster for Supreme Court nominees.
Kavanaugh’s nomination was announced by Trump on 9 July 2018. Controversial due to allegations of sexual assault, his appointment was confirmed by the Senate on 6 October. Totalling 89 days, it involved an FBI investigation and heated debate on Kavanaugh’s credibility and suitability for the role. He was eventually nominated in what is the closest appointment of a justice by the Senate.
Both these processes highlight that Trump will be unlikely to get a vote before the election on 3 November.
However, the 116th US Congress expires on 3 January 2021. This means any nomination has until then to pass before itself expiring. That means McConnell would have 102 days to vote up the nomination, with it passing the nominee during the Senate’s lame duck session after the election in late-November or December. Again, the Republicans would be open to this as they were willing to vote up Merrick Garland in December 2016 if Hillary Clinton won the presidency. This means that one of Trump’s last acts could be a third historic appointment.
In need of mourning and reflection
Trump and McConnell are ready act on the nominee. The White House revised their list of potential nominees on 9 September, adding the likes of his former rival Senator Ted Cruz. While writing this article he tweeted the following:
McConnell’s own mention of the appointment in Ginsberg’s tribute is telling – the Republican leadership in the Senate will do anything they can to pass the nomination. Based on the current polls, the GOP may lose the White House and the Senate, and with that their power to influence any policy. This may be one final act to ensure long-term change by tilting the Supreme Court to the right for an entire generation.
However, RBG has only been dead for just over a day. Her loved ones are in agony, and the millions who admired her are in mourning. And all that can happen, instead of tributing her, is looking to her replacement, even after 27 years on the Court and a lifetime of public service. It is in this moment we realise how far gone divisive politics has gone – to the point when we cannot even afford a proper period of mourning for such an iconic figure.
