Justice Ruth Bader Ginsburg‘s death sets up what promises to be a fierce fight in the US Senate over President Donald Trump’s eventual nominee to replace her, with Democrats still livid over what they consider a Supreme Court seat “stolen” by Republicans during the last presidential election year.
Senate Majority Leader Mitch McConnell refused to allow the Republican-led chamber to consider Democratic President Barack Obama’s nomination of centrist appellate court judge Merrick Garland to replace Antonin Scalia after the conservative justice died of a heart attack in February 2016. McConnell argued at the time that such a vacancy should not be filled during an election year in order to allow the voters to weigh in.
But McConnell has made it clear the Senate would act on any nomination made by Trump during this election year, with the Republican Trump asking voters on November 3 for a second term in office.
“Oh, we’d fill it,” McConnell said in May 2019, drawing accusations of hypocrisy from Democrats.
Ginsburg died on Friday at age 87 of complications from pancreatic cancer.
White House Chief of Staff Mark Meadows told reporters in July after one of Ginsburg’s hospitalizations that Trump would move quickly to pick a nominee if a vacancy occurred and seek a speedy Senate confirmation.
The Senate left Scalia’s seat vacant, enabling Trump rather than Obama to fill it. Conservative Neil Gorsuch was appointed, protecting the court’s 5-4 conservative majority. Trump now has a chance to expand that conservative majority to 6-3 by replacing the liberal Ginsburg with a conservative, becoming the first president since Ronald Reagan in the 1980s to get the opportunity to make three lifetime appointments to America’s highest judicial body.
Such an ideological shift could be felt in American life for decades, with the court playing a pivotal role in social policy and many other matters. For example, the court in 1973 legalized abortion nationwide and in 2015 legalized gay marriage nationwide.
McConnell has made Senate confirmation of Trump’s conservative judicial nominees a paramount priority, moving the federal judiciary to the right. Supreme Court nominations under ordinary circumstances are tense affairs, as witnessed by the contentious confirmation process for Trump’s 2018 nominee Brett Kavanaugh after he was accused of sexual misconduct – allegations he denied. During an election year, and one in which Democrats are trying to win control of the Senate, the process could be that much more heated.
Ever since Democrats in 1987 blocked the confirmation of Reagan’s choice of conservative Robert Bork to fill a vacancy, Supreme Court nominations have become increasingly partisan battles in the Senate, which must confirm all federal judges before they can be seated. There was another especially combative nomination in 1991 when the Senate confirmed President George H.W. Bush’s conservative nominee Clarence Thomas after he was accused of sexual harassment – an allegation he denied as he painted himself as the victim of “a high-tech lynching for uppity-blacks.”
The Kavanaugh confirmation hearings also were explosive, with a California professor offering emotional testimony accusing him of sexually assaulting her decades ago when both were high school students in the 1980s. An incensed Kavanaugh testified that he was the victim of “a calculated and orchestrated political hit” by vengeful anti-Trump Democrats.
Since becoming Senate majority leader in 2015, McConnell has focused much of his energy on filling federal courts with conservative judges. He made his job easier in 2017 by engineering a Senate rules change to require only a simple majority vote to advance Supreme Court nominees, defanging minority Democrats who previously had the power to block nominations when a super-majority of 60 votes in the 100-seat chamber was needed to proceed with confirmation.
Republicans are eager to expand the court’s conservative majority. Chief Justice John Roberts has disappointed conservatives on some major cases by siding with the liberal justices on some noteworthy rulings. He cast the key vote in 2012 preserving the Obamacare healthcare law reviled by Republicans. This year, he aligned with the liberal justices in rulings invalidating a restrictive Louisiana abortion law, protecting LGBT workers and preserving a immigration program created by Obama.
Another Trump-appointed justice could reduce the clout of Roberts.
The recent rulings shook Trump, who tweeted after one of them, “Do you get the impression the Supreme Court doesn’t like me?”
The death of Ginsburg, the court’s senior liberal, gives Trump a chance to make the court a bit more to his liking.
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