WASHINGTON — Even before the death of Supreme Court Justice Ruth Bader Ginsburg on Friday night, November’s presidential election was shaping up to be the most consequential in modern American history. President Trump said so himself, as did his Democratic rival, former Vice President Joe Biden. A procession of crises — the coronavirus pandemic, protests and urban unrest, rampant wildfires — only heightened the sense that, come Nov. 3, voters would choose not merely a president but a direction for the country.
Then, on Friday, came the announcement that Bader Ginsburg had died at the age of 87 of pancreatic cancer. It was her fourth battle with cancer, one she had only recently been optimistic she would win. Aware, as she was dying, that her passing would almost certainly become a political fight, Ginsburg told her granddaughter, “My most fervent wish is that I will not be replaced until a new president is installed.”
But only someone utterly unfamiliar with how Washington works could believe that wish would be heeded.
“I think a 6-3 court is worth the White House and Senate,” one communications director for a Republican member of the Senate told Yahoo News. “The pro-life community has been waiting on this forever. There has to be a vote.”
In the immediate aftermath of the announcement, tributes filled social media and cable news. These invariably noted that Ginsburg was a supremely gifted jurist. And as only the second woman to ever don the robes of a Supreme Court justice, she inspired a generation of female jurists. There are now more women than men attending law school, thanks in part to Ginsburg and pioneering women like her.
But those tributes obscure intense maneuvering by both Democrats and Republicans seeking to gain advantage on a narrowly divided court. Now in control of both the White House and Senate, Republicans want badly to nominate and confirm a justice within a matter of weeks. That justice, the third appointed by President Trump, would tip the court decisively to the right, softening conservatives’ disappointment with Chief Justice John Roberts, who has generally driven in the center lane.
Democrats have one goal, and one goal only: to honor Ginsburg’s dying wish and keep her seat open until January 20, 2021. On that day, they believe, Biden will be sworn in as the next president of the United States. But even getting to Election Day without a new Supreme Court nominee will be a challenge. Then will come the “lame duck” congressional session of November, December and January, with its own weird political calculus. And the entire battle will take place in the middle of a pandemic, as Congress also fiercely debates a new coronavirus relief package.
“This will be a campaign of relentless organizing until the next president is in office,” Ben Jealous, president of the progressive group People for the American Way told Yahoo News. “We are building a coalition like never before.”
In other words, a heated election has been doused with gasoline and lit with a flamethrower.
In largely speculative conversations on Friday night, political aides, judicial activists and legal scholars told Yahoo News there was little Democrats could do to stop Senate Majority Leader Mitch McConnell from quickly nominating and confirming a justice. At the same time, some predicted that would prove a Pyrrhic victory for Republicans, earning them a coveted high-court seat but leading to lasting political damage.
McConnell indicated that there will be a vote, and soon. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” he said in a statement that instantly outraged progressives. Not only because the grieving over Ginsburg’s passing had barely commenced but because the brutal calculus of Capitol Hill suggests McConnell’s prediction will come to pass.
“Today, we mourn. Tomorrow, we fight,” went the message from the Stonewall Democratic Club, a queer activist group in Ginsburg’s native New York.
History haunts the moment. In 1987, as chairman of the Senate Judiciary Committee, Biden led the successful charge against Robert Bork, whom Ronald Reagan had nominated to the Supreme Court. Bork was the nominee who utterly transformed the nomination process, and not for the better, ushering in what Orrin Hatch, then a Republican senator from Utah, would later describe as “a sea change to the confirmation process, with character assassination, shameless misrepresentations of the nominee’s record and partisan warfare.”
More than 30 years later, those remain the hallmarks of high-stakes judicial nominations.
Biden was also central to the successful 1991 confirmation of Clarence Thomas, shepherding the nominee through despite seemingly credible allegations of sexual impropriety leveled against the judge by Anita Hill. Biden would ultimately vote against Thomas, but his role in that confirmation has continued to follow him during the current campaign.
Then there was the seat left vacant by the unexpected 2016 passing of Justice Antonin Scalia, a conservative stalwart who had an unlikely friendship with the staunchly liberal Ginsburg (the two shared a love of opera and are, in fact, the subjects of one). President Obama nominated Merrick Garland, a respected jurist on the D.C. Circuit Court. McConnell, however, refused to grant Garland a hearing, arguing that Obama had no business nominating a new justice with the presidential election looming.
Then, as now, progressives were infuriated and conservatives were energized. That energy likely translated into support for Trump that November. And if he has failed to repeal the Affordable Care Act or build a border wall with Mexico, he has accomplished the rightward shift of the judiciary conservatives have sought since the 1970s, when “judicial activism” first became a Republican rallying cry.
In all, Trump has appointed 216 federal judges, according to the Heritage Foundation’s judicial tracker. Obama, by contrast, appointed 158 judges — in twice the time. But all those district and circuit court judgeships awarded to young conservative jurists (most of them white males) pale in comparison to the plum prize of an open Supreme Court seat.
Much as he has already done on the judicial front, conservatives need him to deliver once more. “This nomination is why Donald Trump was elected,” Sen. Ted Cruz, R-Tex., told Sean Hannity of Fox News on Friday evening. A graduate of Harvard Law School whose name was on a recent list of potential Trump nominees to the Supreme Court, Cruz urged Trump to nominate the justice next week and confirm him or her before the presidential election on Nov. 3.
That would make for the speediest nomination-to-confirmation process in American history. A 2018 analysis by the nonpartisan Congressional Research Service found that the first hearing for a Supreme Court nominee occurred 40 days after the formal nomination.
Obama nominated Garland with 237 days before the 2016 election. Now the 2020 presidential election is 45 days away, and in some states, people have already begun to vote. Trump will still have more than two months after Nov. 3 to govern, even if he loses, but that day’s results could complicate things if Biden is elected or the Senate flips to the Democrats. Either of those developments could rob Republicans of the mandate they believe they currently have.
Speculation about Ginsburg’s health has been rampant in conservative judicial circles for years, stoked by recent trips to the hospital for treatment related to her recurring cancer. Only last week, Trump released an expanded list of potential Supreme Court nominees in what seemed at the time like a ploy to stoke conservative enthusiasm and remind his supporters of why they voted for him in the first place. Now that list will serve as a road map for the weeks ahead.
Mark Meadows, the president’s chief of staff, is expected to lead the process. Though well-liked on Capitol Hill, Meadows, a former House member, doesn’t have experience dealing with the Senate confirmation process. Meadows’s negotiations with House Democrats over coronavirus relief measures do not suggest exceptional skill in either pressuring or persuading legislators, and both those attributes will figure into the fight over Ginsburg’s seat.
Joshua Geltzer, who clerked for Supreme Court Justice Stephen Breyer and is now a professor at Georgetown Law, believes that there might be just enough of a gap between McConnell and Trump for Democrats to exploit.
“As a pure political calculation, I think Senate Majority Leader McConnell and President Trump might actually be in different camps here,” Geltzer explained to Yahoo News. “McConnell might be inclined to rush a nominee through the Senate before Election Day, despite the obvious hypocrisy with how he handled the Garland nomination in 2016, because the court is a genuine high priority for him.”
For a president steeped in reality television, however, the promise of a conservative Supreme Court justice, much like the promise of a coronavirus vaccine, could be more useful than that promise actually fulfilled. That, Geltzer believes, could lead Trump to “nominate a justice before Election Day but see the vote delayed till afterward, to make it an election issue.”
Trump tweeted on Saturday morning that he would nominate someone “without delay.” He made similar promises after first entering the Oval Office, setting the Affordable Care Act in his sights. The lack of coordination with McConnell was one of several factors that doomed that effort. Another was intense organizing from progressives who flooded congressional offices with calls and protests.
The signature Obama health law is among the many issues before the Supreme Court. “This is the ACA fight,” says Jealous, the People for the American Way president, who was formerly the head of the NAACP.
It could be that no Democratic threat or maneuver is as effective as the plain calculus of reelection. “Watch the R’s,” counseled a staffer to a Democrat who sits on the Senate Judiciary Committee.
“I don’t think it’s a done deal at all,” says Nan Aron of Alliance for Justice, a progressive group that has consistently opposed Trump’s judicial nominees. “Republicans have to realize they’ll pay a price at the polls this November if they go ahead with this.”
Many of the same Republicans who ultimately voted for Brett Kavanaugh are facing exceptionally close election contests this year. Susan Collins of Maine, Cory Gardner of Colorado and Thom Tillis of North Carolina all voted in 2018 to confirm Kavanaugh despite sexual assault allegations leveled against the nominee. The anger back then was exceptionally high; it could be even higher if they vote for a Trump nominee next month.
Then there is the chairman of the Senate Judiciary Committee, Lindsey Graham. It was Graham’s furious tirade during the Kavanaugh hearing that, in many ways, rescued the embattled nominee’s prospects — but also made many observers wonder what had happened to the onetime Trump critic and proponent of political compromise.
In 2016, Graham was unambiguous in his view of how the Senate should act if a Supreme Court vacancy comes up at the end of a presidential term. “I want you to use my words against me,” he said at the time. “If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”
Today Graham is facing an exceptionally difficult challenge for his seat in South Carolina from Jaime Harrison, a Yale-educated Black centrist who has beaten Graham in fundraising and tied him in the polls.
“If he goes with Trump, he shows every voter in South Carolina he has no backbone,” says Jealous.
Of course, not voting on a Trump nominee could cause Republican senators to lose support from conservatives, whom they need in November as much as they need centrists. That is why some are speculating that McConnell will hold a hearing on the nominee before Nov. 3 but will not hold a Senate vote until after the election, thus insulating Collins, Gardner and others to a degree (progressive groups, meanwhile, will try to force those senators to commit one way or another well before then, robbing them of the protection a late-November vote would seemingly offer).
The nominee is also likely to be a woman, blunting at least some of the impact of a third Trump pick to the Supreme Court. To be sure, that woman is bound to be as staunchly conservative as her male counterparts. The current frontrunner appears to be Amy Coney Barrett, a Seventh Circuit judge who progressives believe will undermine reproductive rights and gun-control legislation.
In short, while Democrats do have parliamentary tactics and political pressure points at their disposal, it is unlikely to be enough.
“There are a few ways in which they can throw up roadblocks and delay, but if McConnell has 50 votes, he can get this done,” says Norman J. Ornstein, a resident scholar at the conservative American Enterprise Institute. “The only question is whether he decides to wait until after the election because some of those Republicans up this time want more cover. But the odds are he will jam this through in October,” Ornstein speculates. That appears to be the consensus forming among Republicans in Washington, who are quietly confident that the seat is theirs.
“Democrats are angry and frustrated, but not as energized as the Republicans,” says Julian E. Zelizer, a professor of political science at Princeton and the author of a new book on Newt Gingrich, the combative former House Speaker whose legacy of choosing combat over compromise continues to inform virtually every order of business on Capitol Hill.
“Historically, Republicans are more focused on this when it comes to elections,” Zelizer said, referencing longstanding efforts by conservative judicial groups like the Federalist Society. “Moreover, in many ways, Democrats have already lost. The court will have shifted and there won’t be much a Biden presidency will be able to do. Not that it won’t matter, but I think the side that will feel most energized and mobilized will be the GOP.”
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