It turns out that the United States didn’t need to wait until Election Day to undergo a constitutional crisis.
The death of Ruth Bader Ginsburg will almost certainly transform the remaining weeks of the campaign — but also has the potential to reshape constitutional government in the United States.
Ginsburg’s death from cancer, 46 days before the presidential election, comes four years after Senate Majority Leader Mitch McConnell spent nearly a year blocking a vote on Merrick Garland’s nomination to the Supreme Court. Barack Obama appointed Garland, a moderate judge on the D.C. Circuit Court, for the vacancy created by the death of Antonin Scalia in February 2016.
Shortly after Scalia died, McConnell put out a statement. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” said the Kentucky Republican. The result was a historically unprecedented blockade.
The court fight loomed over the 2016 election. For all of Trump’s manifest character flaws, social conservatives held their noses and voted for him because of the Supreme Court. A Clinton-appointed replacement would have shifted the balance of power and given liberals a five to four majority. By letting Trump fill the vacancy, it preserved the status quo for the right.
The 2018 midterms were also defined by Senate hearings focused on allegations of sexual misconduct against Brett Kavanaugh, nominated by Trump to replace Anthony Kennedy. The decision by Christine Blasey Ford to come forward at the last minute to claim that Kavanaugh sexually assaulted her shook up the political landscape. Kavanaugh’s eventual confirmation fueled outrage among moderate suburban women and helped boost the “blue wave” that swept affluent swing House districts in 2018. However, the sense on the right that the Trump nominee was being railroaded by false allegations from the left also boosted turnout from social conservatives and helped Republicans to victory in red-state Senate races like Tennessee and Missouri.
The stakes in 2020 are entirely different. A justice appointed by Trump would likely solidify the court’s conservative majority at 6-3 and end Chief Justice John Roberts’s role as an institutionalist swing vote. This would put Roe v. Wade and other high-court decisions cherished by the left and broadly supported in public polling at risk of being overturned. It also occurs only weeks before November at a moment when over 100,000 Americans have already cast their ballots and with McConnell’s precedent from only four years ago looming over proceedings.
Within minutes of Ginsburg’s death being announced, Schumer put out the exact same statement that McConnell did after Scalia’s death in February 2016. However, unlike McConnell, Schumer is not the majority leader.
McConnell announced in a statement Friday night, “President Trump’s nominee will receive a vote on the floor of the United States Senate,” effectively dismissing any precedent from four years ago. The first challenge for McConnell is to ensure that his caucus can stick together whether a vote is held before the presidential election or during the lame-duck session if Trump loses. (If Trump wins reelection, the difference between the post-election lame-duck session and the new Congress in 2021 is purely academic.)
With Vice-President Pence casting a tie-breaking vote in the Senate, McConnell can afford to lose three members of his caucus. Already, Republicans Susan Collins of Maine and Lisa Murkowski of Alaska have indicated that they would not vote to confirm a nominee before the election and there also is Mitt Romney of Utah, the lone Republican to vote to convict Trump during impeachment, who has yet to weigh in. (The calculus does change in the lame duck if Arizona Republican Martha McSally loses in November — she was appointed to her seat and the race is a special election. If he wins, Democrat Mark Kelly would promptly replace her and not wait until January to take his seat.)
Assuming McConnell holds the remainder of his caucus together to jam through a nominee under those circumstances, it would cause a constitutional crisis. The appointment of a Supreme Court justice under these circumstances would transform ending the filibuster and expanding the size of the Supreme Court from a niche issue on the left to a fundamental litmus test.
Already, Democrat Ed Markey of Massachusetts made clear in a statement on Twitter, “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
In other words, if Joe Biden is elected and Democrats take control of the Senate, there could be a constitutional clash of a magnitude not seen since the New Deal, when a right-wing Supreme Court took on Franklin Delano Roosevelt before eventually buckling under the threat of court-packing.
In the meantime, hundreds of Americans are dying every day from the coronavirus and the country is only weeks away from what could be the ugliest presidential election in its history.