For everyone waking up this morning who may not have been online or near a TV last night, you’ve no doubt already heard that Supreme Court Associate Justice Ruth Bader Ginsburg (aka the Notorious RBG) lost her ongoing battle with cancer last night and passed away. She clearly left her mark on the bench and became a liberal icon spanning generations. Others have already begun publishing digital epitaphs covering her life and work, so I’ll just send my condolences to her friends, family, and admirers and simply say Rest in Peace.
Given the timing, it’s impossible to ignore the question of what happens next in terms of the nation’s highest court and what, if any impact this will have on the upcoming election. Since we should all own up to our mistakes, I’ll confess to having tossed out a (far too optimistic) prediction on social media last night that couldn’t have been more wrong. For whatever reason, I assumed that both sides (including the President and the Senate GOP) would take this time to pause for reflection and hold off on moving toward filling her seat on the bench for a while, possibly until after the election. That bit of divination lasted all of thirty minutes.
President Donald Trump is expected to put forth a nominee to fill Ruth Bader Ginsburg’s seat on the Supreme Court in the coming days, multiple sources close to the president and with direct knowledge of the situation told ABC News. The sources describe the list of potential nominees as very short and including at least one woman. U.S. Circuit Judge Amy Coney Barrett is seen as a leading contender, two sources tell ABC News.
Trump was asked about Ginsburg’s death after leaving his Friday night campaign rally in Minnesota and said he was not aware of her passing. The 87-year-old justice died Friday after a battle with pancreatic cancer, the court announced.
Though it’s no excuse, I’ll note that my wife and I were in the midst of a “virtual cocktail party” with some friends when I tweeted that and I was probably venerating my fellow human beings more than normal.
So now that we know that Donald Trump will move quickly to nominate a replacement and Midnight Mitch will bring the nomination to a floor vote (if he can herd enough of the GOP cats successfully), where do we go from here? Filling the judicial benches with conservatives has been a hallmark of the Trump presidency, if not its defining characteristic. He’s already appointed two members to SCOTUS (Gorsuch and Kavanaugh), but perhaps even more importantly, he and McConnell have been refilling the lower courts at a literally record-breaking pace. It was probably one of the driving factors in Trump’s consistent support from the conservative base.
It’s also worth noting that few Presidents get the chance to place three justices on the Supreme Court in a single term. (The record for total confirmations for a single presidency in the modern era is held by FDR with nine, but he was in office for a very long time. George Washington placed 14 for obvious reasons.)
Assuming Trump and McConnell move forward briskly, will this move the needle in terms of the election in November? You can ask any number of analysts on both sides of the question and probably find whichever answer you prefer. The Associated Press was out of the gate within an hour of the announcement of RBG’s passing and quoted Republican strategist Alex Conant. He said that it’s hard to see “how this doesn’t help Trump,” noting that Biden wanted to make the election a referendum on Trump’s handling of the pandemic, but now it will be a referendum on his SCOTUS nominee.
Meanwhile, the liberals and never-Trumpers at the Bulwark were busy prognosticating in the opposite direction, as you would expect. They start by saying that if Trump and the Senate GOP move forward and replace Ginsburg it will “destroy the remaining public legitimacy of the Supreme Court. Full stop.” (I’m glad they’re not getting overly dramatic.) They go on to say that if Ginsburg is replaced before the election on November 3rd and the Democrats take power next year, they will almost certainly attempt to pack the court by adding more seats. And if she is replaced after November 3rd (in a scenario where Biden wins the election), then “the powder keg would explode.” The only “safe” course of action they posit is to go for the “Garland solution,” where they simply wait and let the next President and Senate Majority Leader (be that Trump and McConnell or Biden and Schumer) seat Ginsburg’s replacement. Or Trump could just nominate Garland himself as some sort of fantasyland tribute to his political foes.
I have my doubts about both of those views. Having had the night and the morning to consider it, I’m just not seeing how this really changes the calculus of the 2020 elections significantly. Everyone knew that Ginsburg’s health issues would catch up with her sooner or later, so this day was always lurking around the corner. Similarly, it’s widely accepted that both Stephen Breyer (82) and Clarence Thomas (72) will sooner or later either face age-related health issues or simply decided that it’s time to retire, perhaps cruising around the country in an RV in Thomas’ case. Openings on the court happen and Presidents and Senators are tasked with replacing them.
Trump failing to replace Ginsburg would potentially cause his base of supporters to throw up their hands in despair and depress the conservative turnout. (As I said, placing conservative judges is one of Trump’s strongest cards to play with his base.) But the people who don’t want Donald Trump to have this opportunity are almost entirely the people who wouldn’t vote for him under any conceivable circumstances anyway. As for the increasingly tiny percentage of “persuadable voters” who might go either way, I don’t see this shifting the tide much either. If they were at least open to the idea of a second Trump term, that means they are either supportive of or neutral about his SCOTUS picks. Sure, they might think that a nomination this close to the election would be a brash (or rash) choice, but we’re talking about Donald J. Trump here. That’s pretty much his brand and they’ve all had nearly four years to come to terms with that.
I’m not trying to be some sort of Debby Downer here and I realize that the political mill always needs fresh grist, but I will truly be startled if we see a significant shift in the polls in either direction after the President nominates a new Associate Justice. Will he be able to drive that nomination over the finish line and seat them? That’s a subject for another column.