Supreme Court Justice Ruth Bader Ginsburg passed away on Friday night — a pivotal moment in the history of the nation’s highest court. Ginsburg’s death is one of the biggest developments yet in 2020, a year that has already included the impeachment of the sitting president, a deadly virus killing nearly 200,000 Americans and an economic collapse. Ginsburg not only reshaped U.S. jurisprudence — in particular, as an advocate for women’s rights — but she became a cultural and political icon too, especially for liberals and progressives.
Indeed, her death, and the fight to fill her seat, may have a number of political implications. Those will become clearer over the next days and weeks, of course, with the election right around the corner, but here’s a first look at what some of those potential implications might be:
1. Republicans have to decide whether they will break from their “no election year confirmations” stance from 2016
Back in 2016, when Senate Republicans blocked the nomination of then-President Barack Obama’s Supreme Court nominee, Merrick Garland, Republican Senate Majority Leader Mitch McConnell argued that voters should get to choose the president and that president should get to pick the next justice. Then-Justice Antonin Scalia died in February 2016, and Obama nominated Garland that March.
Ginsburg’s death comes even closer to the 2020 election — 46 days away. In all of American history, we have had only two Supreme Court vacancies closer to Election Day than we have now. In both instances, the incumbent president won reelection and nominated a replacement shortly after Election Day. (In terms of the actual confirmation, one was confirmed in December, one in March.) So by historical standards — and, notably, McConnell’s own previous standard — Trump would not nominate anyone unless he won a second term in November, since the election is less than two months away.
Filling a seat this close to the election is unheard of
Supreme Court vacancies in presidential election years, by how many days before the election they occurred and whether a replacement was confirmed before the election
Before election, replacement was…JusticeDate of VacancyDays before ElectionNominatedConfirmedS. MintonOct. 15, 195622R. TaneyOct. 12, 186427R. B. GinsburgSept. 18, 202046R. TrimbleAug. 25, 182867J. McKinleyJuly 19, 1852106C. E. HughesJune 16, 1916144P. V. DanielMay 31, 1860159H. BaldwinApril 21, 1844194M. R. WaiteMarch 23, 1888228A. ScaliaFeb. 13, 2016269A. MooreJan. 26, 1804281J. P. BradleyJan. 22, 1892291O. W. HolmesJan. 12, 1932301J. R. LamarJan. 2, 1916310In the early 19th century, the election was held over the course of multiple days; the number of days before the election is the number of days before voting began.
Source: U.S. Supreme Court, U.S. Senate
Back in 2016, Democrats pushed forward Garland’s nomination. Unsurprisingly, the parties have now flipped their positions. McConnell said on Friday night that he intends to allow a floor vote to confirm a Trump nominee, while Democrats are suggesting that the winner of the election should choose the next justice.
This is a huge opportunity for Republicans — to have six GOP-appointed judges on the court at once. It is hard to imagine they will pass it up. It’s not guaranteed that 49 of the other 52 Senate Republicans would push forward and support a Trump nominee, particularly if Trump lost the election, but it seems likely.
2. It’s not clear if a confirmation process could finish before the election.
It would be unusually fast to finish the entire confirmation process in less than 46 days, the time left before the Nov. 3 election. (The average confirmation process since the Harry Truman administration has lasted 50 days.) That doesn’t mean there isn’t enough time for Trump to confirm a new justice, but it would be on the fast side.
Nevertheless, it’s possible that sometime in October, a judge has been nominated and perhaps confirmation hearings are taking place, right on the eve of the election. This creates the possibility that Trump loses the election and perhaps Republicans lose control of the Senate, but the lame duck president and some senators who have lost reelection put a justice on the Supreme Court — a move that will enrage Democrats. Alternatively, Trump could win the election and see a new justice appointed before he even begins his second term.
3. Ginsburg’s death creates new dynamics if there is an election-related dispute before the Court
With a 5-4 GOP majority, Chief Justice John Roberts has been a swing vote, and one who occasionally joins with the Court’s Democratic appointees. Whether the court is 5-3 (with Ginsburg’s seat not filled) or 6-3 (with a Trump nominee seated), Democrats would need two votes from GOP-appointed justices to win a case. So if there is some kind of electoral dispute that gets to the court, that’s bad news for Democrats. It raises the specter of a 4-4 tie in a pivotal election-related case, a potential deadlock that could complicate knowing who won the presidential race.
4. The future of the Court is now an even bigger electoral issue
Both parties already intensely cared about the Supreme Court. But now, there is the potential for a Supreme Court nomination (or discussion of an open seat) in the middle of the election. For Trump, this choice is a big opportunity in two ways. First, the Supreme Court nomination process might distract the media and public’s attention away from his mistakes in handling the COVID-19 outbreak and give him a way to galvanize conservatives who really care about judicial nominations and issues like abortion. Secondly, Trump is struggling in particular with women voters. Trump may pick a woman to replace Ginsburg and make his nominee part of his pitch to women voters.
Biden, too, would likely need to talk about judicial issues more and perhaps describe the kind of person he would put in this seat. (He has already promised to nominate a Black woman in the event of a Supreme Court vacancy if he becomes president.) Also, Democratic vice-presidential nominee Kamala Harris is on the Senate Judiciary Committee, so she would be involved in any kind of confirmation process.
This is also now a big issue in Senate races. GOP incumbents like Sen. Martha McSally of Arizona and Sen. Susan Collins of Maine may be faced with the choice of irritating GOP voters if they oppose a Trump pick or irritating more moderate voters if they back someone who is viewed as too conservative. This is a particularly acute issue for Collins, who is struggling in her reelection campaign in part because she backed Trump Supreme Court nominee Brett Kavanaugh in 2018.
More broadly, one of the most divisive elections in America history will now likely be even more tense and fraught.
5. Who Trump chooses is a really big deal
Assuming that Trump opts to nominate someone, who he chooses is a really big deal. With the election looming, does he nominate someone more moderate than he otherwise would have? Does he nominate a woman? A woman of color? Someone with a long record of opinions or someone who is more unknown?
6. If there are six GOP-appointed justices on the Supreme Court, law in America could fundamentally move to the right
This is the most important implication, even if it is not the most immediate. If Trump is able to appoint a justice who is similar in ideology to Neil Gorsuch and Kavanagh, his first two picks, it seems likely that abortion and affirmative action could be severely limited in the future, the Affordable Care Act overturned and a host of other conservative rulings issued. That is not guaranteed, but seems quite possible.
Trump and Republicans putting another justice on the bench either pro or post-election, in the case that he Trump loses, is also likely to trigger an aggressive Democratic response that could have long-lasting implications. Democratic activists were already floating the idea of increasing the number of justices on the Supreme Court to make up for the Garland seat, and I would expect so-called court-packing ideas to accelerate if Trump puts another conservative justice on the court before or right after he loses a presidential election.