Amid Mourning for Ginsburg, Fierce Battle over US Supreme Court Looms
A fierce political battle was shaping up on Saturday over the future of the US Supreme Court after the death of Justice Ruth Bader Ginsburg, with Democrats opposing any move by President Donald Trump to nominate a replacement this late in an election year.
Ginsburg, the senior liberal justice, died on Friday night at age 87 of complications from metastatic pancreatic cancer after 27 years on the court. Her death gives Trump, who is seeking re-election on Nov. 3, a chance to expand the court’s conservative majority to 6-3 at a time of a gaping political divide in America.
Even as large crowds of mourners gathered outside the Supreme Court building well into the night to pay tribute to the iconic liberal jurist, battle lines were forming. Supreme Court appointments require Senate confirmation, and Trump’s fellow Republicans control the chamber, holding 53 seats of the 100 seats. Democrats lack the votes to block any Trump nominee unless some Republican senators join them.
With the assistance of Senate Majority Leader Mitch McConnell, who has made confirmation of Trump’s federal judicial nominees a top priority, the president potentially could announce a nominee and move rapidly through the confirmation process, which usually takes at least two months.
Democrats are still seething over the Republican Senate’s refusal to act on Democratic President Barack Obama’s Supreme Court nominee, Merrick Garland, in 2016 after conservative Justice Antonin Scalia died 10 months before that election. McConnell in 2016 said the Senate should not act on a court nominee during an election year, a stance he has since reversed.
Obama himself on Saturday called on Senate Republicans to honor what he called that “invented” principle.
“A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment,” Obama said in a statement posted online. “The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle.”
Even before Ginsburg’s death, Trump had made public a list of potential nominees.
Trump’s Democratic opponent in the presidential race, Joe Biden, on Friday night said the winner of the election should be the one to make the selection and that Trump should not move forward with a nominee. Chuck Schumer, the Senate’s top Democrat, agreed.
McConnell pledged that the Senate would vote on any Trump nominee.
For liberals who considered Ginsburg a heroine, the grief they have expressed over her death was tinged with fear over what happens next.
Conservative activists for years have sought to get enough votes on the Supreme Court to overturn the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide. During the 2016 campaign, Trump promised to appoint justices who would overturn that decision. But the court in July, even with its conservative majority, struck down a restrictive Louisiana abortion law on a 5-4 vote.
The two justices who Trump already has appointed were Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. Kavanaugh’s confirmation process was particularly heated, as he faced accusations by a California university professor, Christine Blasey Ford, that he had sexually assaulted her in 1982 when the two were high school students in Maryland. Kavanaugh angrily denied those accusations and was narrowly confirmed.
Republicans risk the possibility of liberals embracing more radical proposals should Trump replace Ginsburg but Democrats win November’s election, with some activists on the left suggesting even before Ginsburg’s death that the number of justices on the court should be expanded to counter Trump’s appointees.
Confirmation votes could also put more pressure on incumbent Republican senators in highly competitive election races, including Maine’s Susan Collins and Arizona’s Martha McSally, at a time when Democrats are eyeing a chance to win control of that chamber. Alaska Senator Lisa Murkowski also could play a pivotal role.
Many court-watchers expect Trump to attempt to replace Ginsburg with a woman. One possible contender on Trump’s list is Amy Coney Barrett, a conservative judge on the Chicago-based 7th U.S. Circuit Court of Appeals who was under consideration in 2018 before Trump picked Kavanaugh.