Much has been said about U.S. Supreme Court Justice Ruth Bader Ginsburg, who died Friday at age 87. I’m not likely to add much to the discussion, which has been mostly predictable and predictably frustrating.
To his credit, President Trump’s first comments upon learning of Ginsburg’s death were some of the more-presidential words he has said as president. I’m not sure how that happened.
Within hours, however, the president, Senate Majority Leader Mitch McConnell and some other Republicans were publicly commenting — almost gleefully — about the prospects of replacing Ginsburg, an icon of the left who spent much of her career fighting for equal rights for women. Her death creates an opportunity for Republicans to create a 6-3 conservative majority on the Supreme Court that could last for generations and may jeopardize the Affordable Care Act, Roe v. Wade and other important issues.
With the president and many senators up for re-election in 44 days, Democratic presidential nominee Joe Biden, a former vice president and senator, and many other Democratic leaders are demanding that decisions to replace Ginsburg be delayed until next year. This, they argue, is what McConnell and the Republicans did in 2016, when President Obama nominated Merrick Garland to succeed Justice Antonin Scalia. The Senate refused to hold a hearing or vote on Garland’s nomination made during the last year of Obama’s presidency, saying the next president should fill the vacancy.
It appears most Republicans feel differently now even though the next presidential election is much closer than it was when Obama nominated Garland in 20016. Only Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska have said they don’t support picking Ginsburg’s successor prior to Election Day. Who knows how they would actually vote if it comes to that. Republicans have a 53-47 majority in the Senate and four of the 53 would have to oppose a nominee to stop an approval.
In no particular order, here are some of my thoughts:
- I didn’t like what the Republicans did to Garland in 2016. If anything, they should have given him a vote and voted down his nomination.
- The president says he will nominate a successor to Ginsburg this week. I read over the weekend that the Supreme Court nomination process in recent history has averaged 71 days before nominees are confirmed by the Senate. If Republicans in the Senate are able to approve a nomination before Election Day, they really will be pushing it, especially since they are only scheduled to be in session 13 days in that period. For perspective, these are the same leaders who have been unable for months to come to agreement on another pandemic relief bill. A Supreme Court nomination might be the only thing Republicans in the Senate could do in 13 days.
- If, in 2016, the president had been a Republican and Democrats had controlled the Senate, it’s likely Democrats also would have blocked a nomination.
- Democrats would also push a nomination through now if the shoe was on the other foot.
- All of this talk and speculation before Ginsburg has even been buried is pretty distasteful and disrespectful to a great person and jurist.
I don’t know if a nominee can be pushed through the process or how individual senators will vote.
It might be wise, however, for Republicans to be cautious. The electorate was already energized. The president’s re-election is not a sure thing and there may be enough vulnerable Republicans in the Senate to turn the balance of power. Democratic turnout may increase this Election Day as a result of what happens in this debate.
Only time will tell what happens. Republicans could get what they have long wanted with the Supreme Court — a conservative majority for a generation — only to lose the White House and give Democrats control of both the Senate and the U.S. House of Representatives. If that happens, as the country’s demographics change, Republicans could find themselves out of power for a long time.
Battle lines have been drawn and the next 44 days look even worse today than they did just a few days ago.