The news of the death of Supreme Court Justice Ruth Bader Ginsburg at the age of 87 was a terrible tragedy to progressives. Aside from the loss of a liberal icon on the Court, her passing raises the already huge stakes of the 2020 elections. Precisely because Donald Trump may lose the presidency and his party may lose control of the Senate (which confirms judicial nominations), Republicans might be tempted to rush through a Supreme Court replacement before the end of the year.
The Senate Republicans responsible for confirming a Supreme Court justice have been clear that they would be willing to fill a SCOTUS opening late in Trump’s term, brushing aside GOP resistance to President Obama’s nomination of Merrick Garland months before the 2016 election. Senate Republican leader Mitch McConnell is clearly ready to get it done, either before or after Election Day, as The Hill reported:
Senate Majority Leader Mitch McConnell, R-Ky., said Friday night that he intends to allow for a floor vote in the Senate to confirm a new nominee made by President Donald Trump to replace the Supreme Court vacancy left by Ruth Bader Ginsburg.
“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” he said.
He continued, “By contrast, Americans reelected our 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. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
McConnell went further by warning Senate Republicans to keep their mouths shut if they had doubts about this strategy:
Over the coming days, we are all going to come under tremendous pressure to announce how we are going to handle the coming nomination. For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry.
McConnell also argued that the time that might be required to confirm a Trump Supreme Court nominee would be less than that required to confirm Ginsburg herself (obviously in less fraught circumstances).
So it’s up to Trump to decide what to do. Will he gamble his presidential prospects on his base’s determination to flip the Supreme Court right away? It’s unclear. RBG’s death could help make Democrats care about the Supreme Court, too. But there is no question Trump and congressional Republicans will be under intense pressure to name and confirm a third SCOTUS justice who wants to reverse federal judicial precedents favoring reproductive rights and other progressive constitutional tenets. And as it happens, Trump has very recently released a new and more radically conservative list of Supreme Court prospects.
It’s obvious that Republicans will view RBG’s sad demise as a windfall. But with Republicans holding only a three-vote margin in the Senate and time running short, the odds remain good that her replacement on the Supreme Court will be made by the next president and the next Congress. If Trump tries to push a replacement through come hell or high water, it could create a rare and powerful litmus test for voters.