Supreme Court Justice Ruth Bader Ginsburg died earlier today after a long battle with pancreatic cancer.
The question of who would be President when the time came to fill Justice Ginsburg’s seat has always lurked just below the surface as one of the most critical factors in the 2020 election.
The symmetry of events to the timing of the death of Justice Antonin Scalia is inescapable. Justice Scalia died in February 2018, nine months before the election, and left the court in an 4-4 ideological deadlock – except on issues where Justice Anthony Kennedy opted to side with his liberal colleagues — something he did more and more often as the years went on.
Pres. Obama nominated relatively moderate DC Appeals Court Judge Merrick Garland to fill Justice Scalia’s seat, and had Garland been given a vote I suspect he would have received some modest amount of GOP support. But Senate Majority Leader Mitch McConnell took a sizeable gamble with the seat and refused to allow the Garland nomination to come to the Senate floor for a vote.
Now Pres. Trump will have the opportunity to name another Supreme Court nominee in an election year, but this time he is on the ballot, it is practically on the eve of the election, his party controls the calendar of the Senate, and the open seat represents a chance to significantly change the dynamic of the Court given the penchant for Chief Justice Roberts to “brake” the Court’s turn in a more conservative direction with five Justices appointed by Republican Presidents.
There is no question that the Trump White House is prepared for this event. Justice Ginsburg’s health has been in decline for an extended period of time, and that decline accelerated near the end of the Court’s most recent term back in July. Just last week Pres. Trump released a supplement to his list of possible Supreme Court nominees during a second term. Joe Biden has failed to do anything similar.
The pressure will now be on Biden to offer up something in that regard, and almost anything he does will have detractors within his own party.
But Biden’s actions in that regard will be a side-show. The real action will be on the GOP side. President Trump will make an announcement, likely in 10 days or less. The selection is likely to be a woman, and likely to be someone who was among the finalists when Brett Kavanaugh was nominated. A sitting appeals court judge is the most likely selection simply because that simplifies the background check that will be done by the Senate Judiciary Committee.
The real question is whether Majority Leader McConnell has 50 dependable votes to confirm a new Supreme Court Justice on the eve of an election. Such a vote could do grave damage to the prospects of embattled incumbents like Martha McSally in Arizona, Susan Collins in Maine, and Thom Tillis in North Carolina.
If a new Supreme Court Justice is confirmed, Pres. Trump may benefit from having “delivered” once again to conservatives — especially cultural conservatives. But will their gratitude be enough to hold back the tide of angry protest votes from Democrats who will at that point see the Supreme Court as lost for a generation?
Even if President Trump survives and wins a second term, McConnell’s Senate majority may not survive, as a vote in favor of a new nominee might be all it takes for a handful of Senate seats to be lost.