Battle lines were drawn across America’s political landscape Saturday over the replacement of U.S. Supreme Court Justice Ruth Bader Ginsburg, whose death Friday silenced the court’s best-known liberal voice and raised the possibility of a 6-3 conservative majority on the bench.
The vacancy came weeks before the November 3 general election that will decide whether President Donald Trump gets a second term in office as well as which party will control the chambers of Congress. How and when the vacancy is filled will have immediate political impact and could leave a permanent imprint on how the Senate functions and America is governed.
Conservatives, eager at the prospect of a third Trump-nominated high court justice, cheered Republican Senate Majority Leader Mitch McConnell’s pledge late Friday that Trump’s eventual pick “will receive a vote on the floor of the United States Senate.” He did not offer a timetable.
'They should not falter'
“President Trump and Senate Republicans have worked hard to overturn decades of liberal activism in our court system and they should not falter now,” Washington-based Heritage Foundation’s political arm, Heritage Action, said in a statement. “Republicans must exercise the power of confirmation that voters have entrusted in them[.]”
Liberal groups and Democrats, meanwhile, girded for battle.
“I’ve never seen political hypocrisy at this level [magnitude],” veteran Vermont Democratic Senator Patrick Leahy said on NPR, noting that in 2016 McConnell refused to allow consideration of former President Barack Obama’s final Supreme Court nominee, Merrick Garland, arguing that high court vacancies should be left unfilled during an election year so the American people can weigh in on the choice.
“This is a flip-flop, it’s pure politics,” Leahy, a member of the Senate Judiciary Committee, said. “It is going to stain the Supreme Court.”
Leahy and other Democrats wrote a letter to the committee’s chairman, South Carolina Republican Lindsey Graham, saying, “There cannot be one set of rules for a Republican president and one set for a Democratic president, and considering a nominee before the next inauguration would be wholly inappropriate.”
For his part, Graham, rejected such calls, noting that in 2013, Democrats changed Senate rules to hasten the confirmation of Obama’s judicial nominees and unsuccessfully sought to block Trump’s second Supreme Court nominee, Brett Kavanaugh, whose 2018 confirmation was roiled by an allegation of sexual misconduct.
“In light of these two events I will support @realDonaldTrump in any effort to move forward regarding the recent [Supreme Court] vacancy,” Graham tweeted.
Republicans have a 53-47 Senate majority and can afford three defections from their ranks and still confirm a nominee with a simple majority, with Vice President Mike Pence breaking a potential 50-50 tie.
Susan Collins, a Republican senator from Maine, is opposed to the Senate’s vote for Trump’s nominee. Collins posted a statement on her Twitter account Saturday, saying “we must act fairly and consistently - no matter which political party is in power . . . I do not believe that the Senate should vote on the nominee prior to the election . . . the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.” Alaska Republican Senator Lisa Murkowski has said she would not vote for a Supreme Court pick before the election. Others may or may not follow suit.
The looming fight added uncertainty and suspense to an election season already brimming with both. Political observers mulled how a high court vacancy may energize voter turnout to the benefit of either political party. Some argued against jumping to conclusions.
“In a world of slim majorities & few persuadable voters, it's not clear that we know how a controversial SCOTUS confirmation battle before November would affect Senate elections and control of the chamber,” Brookings Institution political analyst Sarah Binder wrote on Twitter.
Whether Trump succeeds in filling the high court vacancy, the mere effort appears to be strengthening Democrats’ resolve to change how Washington works should they win control of the Senate next year.
For months, many Democrats have signaled a desire to eliminate the filibuster that requires three-fifths consent for most legislation to advance in the chamber.
Tweeting shortly after McConnell’s statement backing an eventual Trump Supreme Court nominee, Hawaii Democratic Senator Brian Schatz said, “It is going to be very hard after the procedural violence that Mitch McConnell has inflicted on the Senate and the country for anyone to justify us playing it soft next year just to satisfy pundits. We must use the power that voters give us to deliver the change we are promising.”
In addition, some Democrats have suggested expanding the number of seats on the Supreme Court from nine to 11 if they win control of the chamber.
Republicans contend the Democrats’ fury is unjustified and that 2020 is nothing like 2016, when Garland was blocked from consideration. The Senate and White House were controlled by different political parties at that time.
“By contrast, Americans reelected our [Republican] majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” McConnell said in Friday’s statement.
The finger-pointing and recriminations since Ginsburg’s death are the latest examples of escalating partisan tactics that have transformed the judicial confirmation process from what was once a mostly bipartisan endeavor into a near-constant brawl.
Bork hearings, Obama nominees
Republicans were incensed when Democrats banded together in opposition to former President Ronald Reagan’s ultraconservative Supreme Court nominee, Robert Bork, in 1987. Democrats cried foul from 2009 to 2013 when Republicans drastically slowed the consideration of Obama’s judicial nominees, prompting Democrats to change the Senate rules and eliminate the filibuster for all but high court nominees. Republicans went one step further and eliminated the filibuster for all nominees in 2017.
Today, analysts say, America is in uncharted territory as the nation grapples with a Supreme Court vacancy weeks ahead of a general election.
“We rarely have these situations where someone passes away and leaves the court, right before an election,” said University of Virginia presidential studies director Barbara Perry, who described the situation as unprecedented in modern times.
“So, we'll have to stay tuned to see what happens,” she added.