ANALYSIS
Trump pushes for new justice ‘without delay’
vote before the election Nov. 3.
Trump appears likely to nominate a successor to WASHINGTON — Ginsburg this coming President Donald week after her Trump pressed death Friday — a Senate Republicans selection that, if on Saturday to confirmed, would confirm his choice shift the Supreme to replace Justice Court to the right Ruth Bader Ginsburg for years. But with “without delay,” some Republican setting up a senators balking,
Ginsburg momentous battle Sen. Mitch McConnell, sure to inflame the campaign the majority even as party leaders leader from Kentucky, was weighed whether they canvassing to figure out could force a confirmation
whether he had enough votes to rush a confirmation in the next six weeks.
“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,” Trump wrote Saturday morning on Twitter. “We have this obligation, without delay!”
He addressed the message to “@GOP” but did not define “without delay” or explicitly demand a Senate decision before voters cast their ballots.
Trump spoke with McConnell on Friday night and identified his three top choices as Judges Amy Coney Barrett, of the 7th U.S. Circuit Court of Appeals in Chicago; Barbara Lagoa, of the 11th Circuit in Atlanta; and Amul R. Thapar, of the 6th Circuit in Cincinnati, according to two people familiar with the discussion. The frontrunner appeared to be Barrett, a favorite of anti-abortion conservatives who was a finalist for a previous Supreme Court vacancy when the president reportedly said he was “saving her for Ginsburg.”
McConnell moved to stave off defections in his conference by sending a letter late Friday to Republican senators urging them to “keep your powder dry” and not “prematurely lock yourselves into a position you may later regret.” At least two Republicans have made clear that they would not support jamming through a nominee so close to a presidential election, meaning McConnell, with a 53-47 majority and Vice President Mike Pence as a tiebreaker, could afford to lose only one more.
With 45 days until the election, some Republican strategists said that it would make more sense for the president to name a choice now but wait for a Senate vote until a lame-duck session afterward. That way, Republicans who have soured on Trump because of the coronavirus pandemic that has killed nearly 200,000 Americans or for other reasons would have an incentive to turn out to vote.
Exit polls showed after the 2016 election that 26% of Trump’s voters considered the Supreme Court the most important issue that year, when there was also a vacant court seat, compared with just 18% of Hillary Clinton’s supporters. The president has long considered his record of conservative judicial appointments one of his strongest election arguments to motivate his base.
But some Republicans — like Sen. Ted Cruz of Texas — were agitating for a quick vote, arguing that a potentially messy pandemic election with the president already challenging the legitimacy of mail-in voting could wind up at the Supreme Court much as the 2000 election did. A shorthanded eight-member court could deadlock at 4-4 if Chief Justice John Roberts sided with the three remaining liberals, as he has on a few occasions, whereas another Trump-appointed justice would cement the conservative hold on the bench.
“We cannot have Election Day come and go with a 4-4 court,” Cruz said Friday night on Fox News. “A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested election.”
An all-out Supreme Court confirmation fight in the middle of an election or even in a lame-duck session would fit in with a year of seismic events that have rocked the United States. The year started with only the third presidential impeachment trial in history, followed by a once-in-acentury pandemic, the most devastating economic collapse since the Great Depression and an eruption of racial strife that brought protesters into the streets and at times resulted in violent clashes.
Ginsburg’s death at 87 produced a great outpouring of grief and anxiety among her many admirers, with hundreds of people gathered spontaneously late into the night at the Supreme Court building. As a lifelong champion of women’s rights and only the second woman to serve on the court, she became an unlikely icon for the left late in life, called the Notorious RBG for her powerful dissents and unyielding defense of equal rights.
She had survived cancer and other ailments for years and was determined to hang on until after the election, only to fall short. Just before her death, she dictated a statement to her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed.”
No vacancy at the Supreme Court occurring so close to a presidential election in U.S. history has been filled by Senate vote before the election. The closest came in 1916, when Chief Justice Charles Evans Hughes resigned 150 days before the election to run as the Republican candidate, and his successor was confirmed before the balloting.
When a retirement opened up a seat right before the 1956 election, President Dwight D. Eisenhower filled it with a recess appointment, reaching across the aisle to install a Democrat, William J. Brennan. After winning a second term, Eisenhower formally nominated Brennan for the lifetime position. The recess appointment was not controversial at the time, and Brennan was eventually confirmed with almost no opposition.
For today’s partisans, the more memorable precedent was Justice Antonin Scalia’s death in February 2016, which came 269 days before the election. McConnell blocked President Barack Obama from filling the seat with his nominee, Judge Merrick B. Garland, arguing that it was too close to the election.
“The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said in a statement released after Scalia’s death. “Therefore, this vacancy should not be filled until we have a new president.”
McConnell later amended his rationale, saying it was not just proximity to the election that justified blocking a nominee but the fact that the president and the Senate majority at the time were held by opposite parties. Still, after Ginsburg’s death Friday, Democrats, led by former Vice President Joe Biden, their presidential nominee, demanded that Republicans respect the precedent they set of not acting so close to a presidential election — in this case much closer — and threw McConnell’s words back at him.
Senate Democrats held a conference call Saturday to plot strategy, and Sen. Chuck Schumer of New York, the party leader, vowed retaliation if the Republicans forced through a confirmation.
“Let me be clear,” he told his fellow senators, according to a person on the call. “If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table.”
Some Democrats have argued that if they take control of the Senate, they should consider eliminating the filibuster used by the minority party to block legislation and potentially even add seats to the Supreme Court to offset what they consider Trump’s illegitimate appointments. The number of seats on the Supreme Court is set by law, not the Constitution, and has shifted over the years, but the last time a president tried packing the court by expanding it, Franklin D. Roosevelt suffered one of his biggest legislative defeats.
Either way, Democrats wasted little time mobilizing their supporters.
“We cannot let them win this fight,” Sen. Kamala Harris, of California, the party’s vice presidential nominee, wrote in an email. “Millions of Americans are counting on us to stand up, right now, and fight like hell to protect the Supreme Court — not just for today, but for generations to come.”