A replacement for the liberal justice could reshape the court for a generation, marking Trump’s most lasting legacy
The supreme court justice Ruth Bader Ginsburg passed away on Friday evening. As messages of grief and gratitude for her life and career swept the country, here’s a look at what the liberal icon’s death means for the supreme court and what happens next.
Ginsburg’s death has set up nothing short of a historic war for the future of the court – and American life under the law. Donald Trump and Republicans in the Senate are determined to replace Ginsburg with a conservative justice. Their doing so could decisively tilt the ideological balance of the court for a generation and would probably constitute the most lasting legacy of the Trump presidency.
Reproductive rights, voting rights, protections from discrimination, the future of criminal justice, the power of the presidency, the rights of immigrants, tax rules and laws, and healthcare for millions of vulnerable Americans, to name a few issues. Every big issue in American life is on the line.
Replacing Ginsburg with a young conservative justice would fundamentally shift the ideological balance of the court, creating a seemingly bulletproof conservative majority of five justices (excluding chief justice John Roberts, who would make six conservatives but who is seen by the far right as less reliable). This new majority could usher in a new legal landscape that could last at least 30 years.
Yes, Trump appointed justice Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. But they replaced justices who were nominated by earlier Republican presidents. They have pulled the court right, but not as far right as replacing Ginsburg with a conservative would. Ginsburg was nominated by Bill Clinton in 1993.
Yes. An ideological tilt of this kind on the supreme court has not happened for 50 years. Since 1969, Republican presidents have appointed 14 out of 18 justices elevated to the court – but certain Republican appointments, such as Sandra Day O’Connor, Anthony Kennedy and David Souter turned out to occupy moderate ground or even drift liberal on some issues. In the recent hyper-partisan age, that middle ground on the court has mostly disappeared.
It’s not a sure thing. Any new appointment by Trump must be confirmed by straight majority vote in the Senate. Senate leader Mitch McConnell has said he would confirm a new justice before the election. But McConnell is working with a narrow 53-47 majority, and if Trump nominates a conservative with extreme views, confirmation might be more difficult.
But yes, there is definitely the time and the will for Trump to pull this off. And the willingness of Republicans to violate every norm in the process should not be underestimated. The Republican senator Joni Ernst of Iowa said in July that a Trump pick could even be confirmed during a lame duck session of Congress, meaning after the 3 November election but before a new Senate is installed.
He’s released a list of potential picks, among them Amy Coney Barrett, 48, whom Trump appointed to the US court of appeals for the seventh circuit in 2017. Barrett worries progressives as a committed Roman Catholic with conservative views on social issues. At Barrett’s circuit court confirmation hearings, the Democratic senator Dianne Feinstein expressed concern that the judge would be guided by church law instead of the constitution.
“The dogma lives loudly within you and that’s a concern,” Feinstein said, “when you come to big issues that large numbers of people have fought for for years in this country.”
Astonishingly, earlier this month the president augmented the list with the names of three sitting Republican senators among 20 additional names, including Ted Cruz and Tom Cotton, who then tweeted “It’s time for Roe v Wade to go”, referring to the landmark 1973 court ruling that led to the legalization of abortion in the US.
Trump sees appointing conservative judges as a political winner with his base, and a third supreme court justice in his first term could help him win re-election.
But the hypocrisy in a move by McConnell to confirm a Trump pick with so little time before the election – after McConnell blocked the Barack Obama nominee Merrick Garland in March 2016 on the grounds that “only” eight months remained before that year’s election – could be politically costly.
Because McConnell might be more worried about helping Republican senators win in close races, allowing McConnell to keep his leadership post, than helping Trump win a long-shot race, the political will to push a Trump nominee through might falter.
Just hours before Ginsburg died, moderate Republican Senator Lisa Murkowski of Alaska had remarked hypothetically, it was reported on Friday evening, that she would not confirm a new justice until after the presidential inauguration in January, 2021.
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