WASHINGTON — The death Friday of Justice Ruth Bader Ginsburg threw an already chaotic year into greater turmoil as the future of the Supreme Court and American law hung in the balance.
As tributes to the legendary jurist and feminist icon poured in, a major question loomed over the country 45 days before the presidential election: Will President Donald Trump and the Republican-controlled Senate confirm a replacement before the next presidential inauguration?
Senate Majority Leader Mitch McConnell, R-Ky., answered in the affirmative.
“President Trump’s nominee will receive a vote on the floor of the United States Senate,” he said in a statement.
At stake is the future of the court, which currently has a 5-4 conservative majority on many consequential issues, one that could be expanded and cemented for a generation if Republicans confirm another justice. The nomination battle over Ginsburg’s successor could be unusually acrimonious.
The dying wish of Ginsburg, the leader of the court’s liberal wing, told to her granddaughter days before she died, was that she “will not be replaced until a new president is installed,” according to NPR.
Democrats demanded that Republicans commit to waiting until the next president — Trump or Democratic nominee Joe Biden — takes office in January.
Some cited McConnell’s refusal to fill a vacancy under Democratic President Barack Obama after the death of conservative Justice Antonin Scalia in February 2016.
“There is no doubt — let me clear — that the voters should pick the president and the president should pick the justice for the Senate to consider,” Biden said in a brief statement Friday night in Wilmington, Delaware. “This was the position Republicans took in 2016.”
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Senate Minority Leader Chuck Schumer, D-N.Y., released a statement that was identical to one released by McConnell that day: “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.”
On Friday, McConnell defended his decision by arguing that the Senate and the White House were controlled by opposite parties then, whereas they are now run by the same party. He has made it a top priority to speedily confirm young and conservative judges to lifetime-appointed seats, including Supreme Court Justices Brett Kavanaugh and Neil Gorsuch.
Senate Judiciary Chairman Lindsey Graham, R-S.C., whose committee has jurisdiction over Supreme Court nominations, released a statement praising Ginsburg as “a trailblazer” who served honorably. He didn’t say if he intends to hold hearings for a potential Trump nominee to replace her.
The math of the Senate is simple: Republicans have 53 seats. They can afford to lose three of their members and still confirm a Supreme Court justice without any Democratic votes (with Vice President Mike Pence casting a tie-breaking vote). It was not immediately clear Friday whether the party would have the votes.
Time is short. The election is 45 days away and all eight Supreme Court nominees have taken more than 60 days to get confirmed after the nomination was announced. The most recently confirmed justice, Kavanaugh, took 89 days in 2018. The next Congress and president won’t be sworn in until January, leaving a lame duck session in between.
A decision to confirm a Supreme Court nominee in the waning days of the term could ignite Democratic voters in backlash, with consequences for Trump’s re-election bid and the Senate majority.
It could create a dilemma for Republican senators in battleground states, including Sen. Martha McSally of Arizona, Sen. Susan Collins of Maine, Sen. Cory Gardner of Colorado, Sen. Thom Tillis of North Carolina, Sen. David Perdue of Georgia, and Sen. Joni Ernst of Iowa. And Democratic Sen. Doug Jones of Alabama may also face a complicated decision.
McSally, one of the most politically endangered senators, said on Twitter, “This U.S. Senate should vote on President Trump’s next nominee for the U.S. Supreme Court.”
Republicans are certain to face pressure from their base to fill the vacancy as part of a decadeslong quest to overturn Roe v. Wade and subsequent decisions assuring the right to an abortion, among other goals such as expanding gun rights and limiting congressional authority on economic regulation.
While the Supreme Court has in recent decades motivated Republicans more than Democrats at the ballot box, there is some evidence of that dynamic shifting this year. A Pew Research Center poll released last month found that 66 percent of Biden’s supporters rated Supreme Court appointments as “very important” to their 2020 vote, compared to 61 percent of Trump supporters.
Ginsburg’s death also means that an eight-member court with five Republican appointees and three Democratic picks would be the final arbiters of post-election disputes that experts say are possible due to uncertainties created by voting changes during the coronavirus pandemic.
Trump, asked after his rally to respond to Ginsburg’s death, looked shocked upon hearing the news. “She was an amazing woman” who “led an amazing life,” he said, and added: “I am sad to hear that.”
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At least one Democratic senator on Friday suggested retaliating by adding seats to the Supreme Court if Republicans confirm a vacancy in the waning days of Trump’s term, an idea that others in the party had floated earlier this summer.
Such a move would require abolishing the filibuster and passing a law to expand the court.
“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year,” Sen. Ed Markey, D-Mass., said. “If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
Brian Fallon, a former spokesman for Schumer who founded the judicial advocacy group Demand Justice, nudged Democrats to wage an aggressive fight, saying: “Make no mistake: any Supreme Court with a Trump justice confirmed to Ruth Bader Ginsburg’s seat at this point in the calendar would be fundamentally illegitimate, and Democrats must be prepared to act accordingly.”
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