Justice embraced rights of women
Replacement: Who will be successor now wild card in 2020 race
Supreme Court Justice Ruth Bader Ginsburg’s dying wish reportedly was that she not be replaced until there’s a new president.
Senate Majority Leader Mitch McConnell made it clear Friday night that he has no intention of honoring that wish. That means the battle over Ginsburg’s replacement will inject a highly unpredictable ingredient into the last 45 days of the presidential campaign and several Senate races that will decide which party controls Congress next year.
“This is going to completely transform the election,” said former U.S. District Judge Michael McConnell, director of the constitutional law center at Stanford University, who was appointed to the bench by
“We have lost a giant among us. A trailblazer. And a champion of equality and justice. Our hearts ache tonight.”
Gov. Gavin Newsom
“Her passing is an incalculable loss for our democracy and for all who sacrifice and strive to build a better future for our children.”
Nancy Pelosi, House Speaker
President George W. Bush and is not related to the Senate leader. “This is what it’s all going to be about.”
The consequences of replacing the liberal Ginsburg with a conservative nominated by President Trump would be generational: If confirmed, the new justice could lock in a 63 conservative court majority for years, throwing into question the future of the Affordable Care Act, abortion rights and gun control laws.
And there’s not much Democrats can do by themselves to derail the confirmation in the Senate, where Republicans hold a 5347 majority. They couldn’t do much even if Trump were to lose in November and the Democrats were to win control of the Senate — Republicans would still be in power during a lameduck session between the election and January.
“Democrats can kick and scream and yell, but they don’t have the power to do much else,” said Jessica Levinson, a professor of law at Loyola Law School in Los Angeles. “I fully expect President Trump to fill this seat.”
The president didn’t say Friday what he would do after he learned of Ginsburg’s death, but he has made it clear in the past. In August, he told an interviewer that if a court vacancy arose this year, “I would move quickly. Why not? I mean they would. The Democrats would if they were in this position.”
In fact, the Democrats were in that position in 2016 after Justice Antonin Scalia died, and McConnell blocked thenPresident Barack Obama’s nominee, Merrick Garland, from even receiving a Senate hearing for 10 months.
McConnell issued a contorted explanation Friday night of how these circumstances are different in promising that “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
“Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” the Kentucky Republican said in justifying his actions four years ago. “By contrast, Americans reelected 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.”
McConnell recognizes that as loudly as Democrats will protest his tactics, Trump’s base will be just as enthusiastic about them — and be even more motivated to vote Republican than they already are.
“The fight over this seat will be a boon for base turnout on both sides,” said Democratic strategist Katie Merrill. “The question is how independents will view Trump and McConnell trying to rush to fill a Supreme Court seat in the next six weeks.”
Many Republican voters — even those skeptical of Trump — praise his conservative judicial picks. In turn, the president frequently mentions his court nominees on the campaign trail. Earlier this month, Trump released a list of 20 people he would consider nominating to the high court, including Republican Sens. Ted Cruz of Texas and Tom Cotton of Arkansas.
A Pew Research survey of registered voters in August found that “Supreme Court appointments” was third on the list of issues they considered to be “very important” when they cast their ballots — right after the economy and health care, and ahead of the coronavirus pandemic.
Democrats are indeed outraged at McConnell. Senate Democratic leader Chuck Schumer of New York issued a statement that was wordforword identical to the one McConnell put out in 2016, in which he 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.”
Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, said that “to jam through a lifetime appointment to the country’s highest court — particularly to replace an icon like Justice Ginsburg — would be the height of hypocrisy.”
Democratic presidential nominee Joe Biden said voters “should pick the president and the president should pick the justice for the Senate to consider.”
Even Ginsburg herself tried to exert her influence posthumously, through a statement that her granddaughter related to National Public Radio: “My most fervent wish is that I will not be replaced until a new president is installed.”
But there is little that Schumer, Feinstein or any other Senate Democrat can do by themselves. Their only hope would be for at least four Republicans to break ranks with McConnell and promise not to vote to confirm a new justice until after inauguration day.
It’s not out of the question that could happen. GOP Sen. Susan Collins of Maine, facing a tough reelection battle, told a New York Times reporter earlier this year that she would not vote for a new justice before January. Alaska Sen. Lisa Murkowski, a Republican who is not up for reelection, told Alaska Public Radio on Friday before Ginsburg died that she “would not vote to confirm” a new justice this year.
In July, Iowa GOP Sen. Chuck Grassley said about the possibility of a new justice this year, “You can't have one rule for Democratic presidents and another rule for Republican presidents.”
Another Republican senator not facing reelection, Utah’s Mitt Romney, already showed a willingness to break with Trump and the party when he voted to convict the president of one of the two articles of impeachment against him.
Leftleaning groups are eager to make the court an issue as Democrats try to gain the net four seats they need to assure themselves of Senate control. Demand Justice, a group that wants to see more liberal judges named to the bench, said it would spend $10 million on ads to try to help Democrats in key states. Besides Collins, the list of vulnerable Republicans includes Colorado Sen. Cory Gardner, North Carolina Sen. Thom Tillis, Arizona Sen. Martha McSally and Iowa Sen Joni Ernst.
Also in a surprisingly close race is South Carolina Sen. Lindsey Graham, chairman of the Judiciary Committee. He’s gone from someone who mocked Trump before the 2016 election as “a racebaiting, xenophobic, religious bigot” to one of the president’s most ardent defenders. He’ll have to make a similar transformation to justify backing a Trump court nominee.
Two years ago, Graham said, “If an opening comes in the last year of President Trump’s term, and the primary process has started, we'll wait to the next election.”