Welcome to the post-Supreme Court Justice Ruth Bader Ginsburg world. As I posted on Twitter immediately after learning the news that Ginsburg had died, the Earth just shook.
Our friend and occasional contributor Rohn Bishop posted on Twitter, “One Justice on the Supreme Court shouldn’t be this important. That fact it is means we’re doing it wrong.”
Bishop is right. We have inflated the importance of the U.S. Supreme Court beyond its purpose. When we expect the Court to settle nearly every political difference, we look at every Court vacancy as a life-and-death political struggle.
However, there is a difference between the death of Ginsburg and Justice Antonin Scalia in 2016. The “control” of the Court, the ideological balance, is not in question with this vacancy. I’d add that, as David French has pointed out, even the most pro-life replacement for Ginsburg will not likely result in the overturning of Roe v. Wade.
The smart move would be for President Donald Trump to say he will appoint Judge Amy Coney Barrett if he is re-elected. The Democrats would not be able to help themselves and would spend the time between now and Election Day bashing traditional Catholics, pushing more Catholics to the GOP.
Meanwhile, base Republicans would be energized. The Scalia effect on wavering Republican voters in 2016 may have been the deciding factor in that election, especially in Wisconsin, and it certainly has been a key to Trump’s support among Republicans since that election.
There is something of a precedent for this political maneuver. In 1980, presidential candidate Ronald Reagan promised that the next Supreme Court vacancy would be filled by a woman. (He fulfilled that promise with the nomination of Justice Sandra Day O’Connor.)
However, Republican Senate Majority Leader Mitch McConnell (R-KY) has already indicated that there will be a vote on Trump’s nominee, and Trump has already said on Twitter that he is obligated to make a nomination because of the election in 2016.
Numerous conservative pundits are already rushing to give Trump and GOP Senators cover on this issue, pointing out (correctly) that the Merrick Garland precedent in 2016 had the caveats of the lame-duck status of President Barack Obama and a Senate controlled by the opposition party.
However, while McConnell made those exceptions to the 1992 “Biden rule,” his GOP colleagues were not so careful. Senate Judiciary Chairman Lindsey Graham even said in 2018, two years after the Garland fight, that he would not support filling a Supreme Court vacancy in an election year.
Wisconsin’s Sen. Ron Johnson (R) made a more nuanced statement in 2016 than he is getting credit for.
“Let the American people have a voice in the composition of the Supreme Court. Instead of a lame duck president and Senate nominating and confirming, a new president and Senate – elected by the people only a few months from now – should make that important decision. … In the politicized atmosphere of an election year, you probably shouldn’t even nominate someone. … It’s not fair to the nominee, it’s not fair to the court.”
Nonetheless, it would be an interesting flip-flop by Johnson if he supported filling the Court vacancy now.
Speaking of the flip side, every Democrat who demanded that Garland get an up-or-down vote in 2016 would be hypocritical now if they supported leaving the Court vacancy open. That includes Sen. Tammy Baldwin (D-WI).
“In the spirit of bipartisanship and cooperation, I would encourage my Republican colleagues to give Judge Garland fair consideration,” Baldwin said about the nomination in 2016. “To ignore this nomination is wrong and irresponsible. Senate Republicans need to do their job and provide Judge Garland a hearing and an up-or-down vote. I believe the American people deserve to have a full and functioning Supreme Court working for them.”
Baldwin also said in 2016 the Republican-controlled Senate “need to do their jobs, respect the president, the Constitution and the American people,” by voting on the Garland nomination.
We’ll see if Baldwin has the same position towards the nomination of a candidate to replace Ginsburg.
How important politically is this fight? Wisconsin’s Marquette University Law School did a national survey on the U.S. Supreme Court, completed three days before Ginsburg’s death.
According to Charles Franklin, the Law School poll’s director:
In the survey, 48 percent say that the choice of the next justice is very important to them and 34 percent say it is somewhat important, while 17 percent say it is not too important or not at all important to them.
Among likely voters who support Democratic presidential nominee Joe Biden, 59 percent say that the next court appointment is very important, while 51 percent of likely voters who support President Donald J. Trump say this.
Perhaps more important, a bipartisan majority of respondents agreed that, should a vacancy in 2020 occur, that the Senate should hold hearings on a nominee, “with 67 percent saying hearings should be held and 32 percent saying they should not be held.”
That includes support from 68% of Republicans, 71% of independents and 63% of Democrats.
The Marquette University Law School survey was conducted September 8-15, 2020. They interviewed 1,523 adults nationwide, and the survey has a margin of error of +/-3.6 percentage points.
Despite popular support for due consideration of a Trump nominee, we’re unlikely to see a vote. McConnell would have to win over a number of Senators in his own caucus.
So the smart play of using the Supreme Court vacancy to turn out GOP voters may actually be forced upon the Republican Party by a few rebels.
Of course, the only reason to push through a nominee now, rather than wait until after the election, is if Republicans fear Trump is going to lose in November. Surely Republicans don’t believe that?