The death of liberal Supreme Court Justice Ruth Bader Ginsburg six weeks before the presidential contest has upended electoral calculations with a nomination and confirmation process that is sure to dominate headlines as much as the election itself.
Republicans have an opportunity to remake the court into a conservative institution for the first time since the 1930s, fulfilling one of their chief political goals of the last generation. Democrats are on the defensive, forced into opposition without the political power to affect the nomination.
Democratic choices range from the scorched earth tactics of the Bret Kavanaugh nomination, which may satisfy their vehement base but risks stark disapproval among the independent and undecided Mid-Western voters they desperately need to defeat Donald Trump, to a principled but respectful hearing in the Senate, which acknowledges their political weakness and keeps the focus on the presidential and general election.
Republicans control the Senate 53 to 47 having gained two seats in the 2018 election. President Trump has said he will announce his choice on Saturday and Mitch McConnell the Senate Majority Leader has promised a hearing and vote on the nomination before the election on November. With only Alaskan Senator Lisa Murkowski and Maine member Susan Collins objecting to holding a vote the Republicans have more than the necessary 50 votes to proceed.
The political implications of the nomination and approval can be divided into four categories, the nomination itself, the candidates, the confirmation process and the aftermath. We will look at each separately and the calculations and possible outcomes for each of the parties.
Democrats were incensed when Senate Republicans refused to consider President Obama’s nomination of Merrick Garland in March 2016 after the death of conservative Justice Antonin Scalia. Majority Leader Mitch McConnell’s long-shot gamble paid off that November when Donald Trump unexpectedly defeated Hillary Clinton for the White House. McConnell’s political risk was considerable, Clinton had been a heavy favorite and Garland was a relative moderate. Had Clinton won she would have probably put forth a much more liberal nominee.
There is no constitutional requirement for the Senate to take up a nomination. At the time Mr. McConnell said that when the Presidency and the Senate are held by different parties in an election year the nomination should be reserved for the White House victor.
When President Trump swiftly announced that he would nominate a new justice after Ruth Bader Ginsburg died and McConnell said the Senate would take up the nomination Democrats accused the GOP of blatant hypocrisy.
The objection is transparently political. There is no doubt that were the situation reversed with a Democratic President and Senate facing a tightly contested election the party would not hesitate to confirm their nominee.
When Justice Scalia was replaced by Neil Gorsuch and then Anthony Kennedy by Brett Kavanaugh the balance of the court between conservatives and liberals remained at five to four. That did not stop the Democrats in the Senate from launching a vicious campaign of character assassination against Brett Kavanaugh in an attempt to deny him the court.
One result of those attacks and the public theatrics and media frenzy surrounding the confirmation hearing was the loss of four Democratic Senate seats in the 2018 election increasing the Republican majority by two. That experience appears to have hardened Republican resolve to use the political ascendancy given them by the electorate.
If Ms Ginsburg’s replacement is approved by the Senate the composition of the court will become decidedly more conservative at six to three and the Republicans will have succeeded in remaking the court for the first time in two generations.
For the Republicans the political risk around the court was that they would not move swiftly and forcefully to nominate and approve a new justice. This would have dismayed many of their supporters for whom the composition of the court was and is an important reason for voting Republican. Even though Senators Murkowski and Collins have said they do not support taking up the nomination before the election, both have left their actual nomination decision uncalled. It is quite possible that each will vote against the process knowing that it will pass and then approve the nomination.
President Trump and Majority Leader McConnell have, by their quick actions, mitigated the risk to the party in the election. Mr. McConnell appears to have a lock on the needed votes in the Senate. It will be five or six weeks to the approval vote and the Democrats will certainly try to block or delay the process or derail the candidate. However, after the Kavanaugh hearing their ability to dissuade Republican Senators from voting their party’s and constituents’ wishes is greatly reduced.
The chance of the Democrats convincing or forcing President Trump to wait until after the election to nominate was always close to nil. Their ability to prevent the Senate from taking up the nomination was not much greater and depended on peeling off at least four Senators to vote against the process. But with Senators Corey Gardner of Colorado, Lindsey Graham of South Carolina, Charles Grassley of Indiana and Mitt Romney of Utah, all of who had previously voiced some discomfort with a pre-election vote, lining up with McConnell, the objections of Murkowski and Collins become academic.
Are Republicans hypocritical in voting for their nominee while preventing Obama’s choice in 2016? Does it matter? Hypocrisy is the weakest of all charges in politics. All parties and politicians partake to one degree or another. Voters care more about action. Since the Republican majority in the Senate increased after the Kavanaugh hearings it is a safe assumption that the electorate expects and will reward results. McConnell and Trump understand this and intend to deliver.
Conservative women present particular difficulties for Democrats. If their political attacks become ad hominem, as they often do, they risk alienating the female voters in swing districts needed to win in close elections.
In a Supreme Court nomination fight guaranteed to excite passions on both sides, the danger that Democratic partisans or legislators will step far over the bounds of civility are acute.
President Trump has said he will nominate a woman. The two leading candidates are Amy Coney Barrett (48) who serves as a circuit judge for the US Court of Appeals for the Seventh Circuit in Indiana, Illinois and Wisconsin and Barbara Lagoa (52), also an Appeals Court Circuit Judge on the Eleventh Circuit in Alabama, Florida and Georgia.
Jonathon Swan of Axios reported in 2019 that Trump had said of Barrett “I’m saving her for Ginsburg.”
Ms Barrett is highly regarded in conservative legal circles, engaging and articulate. She was confirmed by the Senate 55-43 in 2017 with just three Democratic votes, so she certainly knows what is coming if she accepts the nomination.
Those hearing were the occasion of California Senator Diane Feinstein’s infamous remark that “The dogma lives loudly within you,” in reference to Ms. Barrett’s Catholic religion and abortion. That comment seemed to many to be perilously close to a religious test for office expressly forbidden by the Constitution. She is married with seven children, five of her own and two adopted from Haiti.
Barbara Lagoa is the daughter of Cuban anti-Castro immigrants and was approved by the Senate 80-15 in 2019. The much more one sided vote, including 26 Democrats, points to the greater difficulty Democrats will have in attacking this former federal prosecutor and the first Hispanic woman on the Florida Supreme Court. She was appointed to the Eleventh Circuit by President Trump.
Ms Lagoa would resonate strongly in Florida, a crucial state for President Trump, which has a large Hispanic population and a powerful and successful Cuban community. Democratic Senators would have a hard time attacking Ms Lagoa in confirmation hearing as blatantly as they did Brett Kavanaugh given the dependence of many on the Hispanic vote in their home states. Her judicial recorded is not as extensive as Ms Barrett, but despite the political problems the left would oppose her strenuously though perhaps keeping, or trying to keep their attacks to her judicial rulings and philosophy.
President Trump and the Republicans have been making inroads in the Hispanic electorate which has traditionally voted Democratic by a wide margin. Opposition, whether official in the Congress or in the many Democratic media outlets, which strayed even mildly into the type of calumny deployed against Robert Bork, Clarence Thomas or Brett Kavanaugh would likely backfire badly in the Hispanic community. This could be a major consideration for the Trump campaign.
Ms Barrett who teaches at the University of Notre Dame in addition to her judicial duties, is considered a constitutional originalist like Antonin Scalia for whom she clerked for in 1998 and 1999.
It is likely that Democratic and progressive attacks on Ms Barrett, unconstrained by Hispanic electoral considerations and excited by her practicing Catholicism, would be degrees more intemperate and violent than those on Ms Lagoa.
Confirmation of either woman would reduce liberal influence on the court to three justices, Sonia Sotomayor, Elena Kagan and 82-year old Steven Breyer. If President Trump wins reelection he stands a very good chance of appointing four Supreme Court justices, cementing a conservative legacy for a generation.
The stakes for this nomination and presidential election are indeed high. The Democrats have been able to count on the Supreme Court to advance their philosophical and political agenda for almost two generations and revoking that privilege is going to go down very badly.
Herein lies the great danger for the Democrats and their media allies. The rhetorical excesses, scurrilous and unsubstantiated charges and blatant character assassination used against Bret Kavanaugh will play to the Republicans advantage in the national election.
The voters in the middle of the political spectrum and in the middle of the country who will decide this election could easily be repulsed by a repeat such shenanigans especially as they are well-remembered from just two summers ago.
Confirmation hearings will be televised and the audience will be large. Can the Democratic Senators, goaded by their own partisans and ideology, refrain from the kind of zealotry, trickery and tone-deaf questioning that not only failed to dislodge the Kavanaugh nomination but generated the electoral backlash that helped lose four seats and land them in their current predicament? The odds are not on their side.
The Republicans and President Trump have been adept at turning Democratic mistakes to their advantage.
The summer riots and attendant civil disturbances in Portland, Seattle, Minneapolis, New York, Louisville and elsewhere were ignored for months by Democrats who failed to differentiate them from the protests they praised and were absent entirely from the rhetoric at their August convention.
It was only the Trump campaign’s dominance of the law and order issue and the belated realization that their silence was costing votes that galvanized a half-hearted response from House Speaker Pelosi, Biden and a few others.
Senate Minority Leader Schumer has promised an aggressive response if the Republicans nominate a new justice. ““Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” Schumer said. “Nothing is off the table.”
The problem for the Democrats is that the possible remedies, procedural delays or even another attempted impeachment of President Trump or Attorney General Barr, packing the Supreme Court with liberal justices if they win control of the Senate and the Presidency or statehood for the District of Columbia and Puerto Rico to give them four more Senators, are highly unpopular with the general electorate.
The court packing option, not attempted since the 1930s, was a loser even for Franklin Roosevelt despite his overall popularity. That Biden refused to answer when asked by a reporter if he supported enlarging the Supreme Court tells one all that is necessary about the dangerous split between the Democratic base and the general electorate.
The recent equity sell-off has more to do with the inability of Congress to pass a second federal stimulus bill than it is a judgement on the progress of the campaign or a likely victor. Though the Congressional dispute is a direct result of the election, neither side is willing at this late date to pass a bill that might in any way assist the opposition, the equity decline is not a verdict on the contest.
As stocks have dropped the dollar has firmed over the past week and Treasury rates have barely moved. The blasé attitude may seem unconscionable to partisans for whom everything is political, but the nearly matched election has provided few clues to what the economy will look like on November 4.
The passion of the Democrats and the Progressive left, particularly on the topic of abortion, is going to be hard if not impossible to control when faced with the potential reversal of Roe v. Wade.
But the Republican control of the Senate and Presidency that gives them the power to seat the court was fairly won. It represents popular sovereignty in the US republican system. Any attempt to deny the legitimate exercise of this power will be seen by many people as an attack on the system itself. Democrats risk another and stronger voter backlash if they take the side of protesters who desire the overhaul or destruction of the government.
Can the Democrats oppose a president they abhor in the face of the seeming unstoppable transfer of the Supreme Court to the conservatives without exciting the excesses that will deliver the election to Donald Trump and the Republicans?
Ruth Bader Ginsburg led an exemplary life but fate has her made her death a monumental danger to her legacy.