This year, the so-called October surprise, which usually precedes presidential elections, seems to have arrived ahead of schedule. It wasn’t the announcement of either political campaign, but an act of fate—the unfortunate passing of U.S. Supreme Court Justice Ruth Bader Ginsburg on September 18.
Justice Ginsburg, who earned the moniker “Notorious RBG,” had been battling various ailments since 1999, but the persistent illnesses didn’t deter her from being one of the gutsier justices on the Supreme Court, staunchly defending the rights of women, and most marginalized groups in America. No wonder she gained the reputation as the most liberal of the liberal judges on the Court. And, although her health battles became fiercer over the past year, her death still came as a great shock. Justice Ginsburg will be surely missed as a human being, and one of the more passionate, committed Supreme Court justices.
Although she may not have wanted it, her death opens a new battle in the intense war the 2020 presidential election campaign has become. Only the very naïve would believe when Democrats, exclaimed, “Oh no!’ on learning of Justice Ginsburg death, this not only referred to the news of her sudden passing, but to the sudden vacancy created on the Supreme Court, making it possible for President Donald Trump to immediately appoint a very conservative justice to fill the vacancy.
Similarly, only the very naïve would believe many Republicans didn’t exclaim, “Yes!” on hearing the news of the justice’s death, cognizant of the opportunity to select another conservative justice to the court. Those naïve enough to doubt Republicans so exclaimed, need look at how quickly after the announcement of Justice Ginsburg’s death Republican Senate Majority Leader Mitch McConnell announced the Senate would move to fill the vacancy.
There’s little doubt that the possibility of President Trump nominating someone to fill the new Supreme Court vacancy, and the Republican majority senate voting to confirm this nominee, has injected new impetus in Republicans across the general political landscape.
Of course, it’s fundamentally hypocritical that McConnell and the majority of Republican senators, are eager to vote to confirm Trump’s nominee for the Court, when McConnell and Senate Republicans blocked President Obama’s Supreme Court nominee. In February 2016, 10 months before presidential elections, Justice Antonin Scalia died. The following month Obama nominated Merrick Garland to replace Justice Scalia, but McConnell and his Republican Senate colleagues refused to allow the vote, claiming repeatedly since an election was to be held in November, the incoming president should have the privilege of naming the nominee. Despite pressure and strong arguments from the Democrats, the Republicans did not relent.
Now the tables have turned. McConnell and most Republican senators are conveniently ignoring their strenuous 2016 arguments. They are now prepared to confirm Trump’s nominee, arguing such a vote is justified before an incoming president is seated in January, because the incumbent president and majority party in the Senate are from the same party.
This is a major conundrum for the Democratic Party. There are several issues to be heard by the Supreme Court, including the Affordable Care Act (Obamacare), abortion rights, the DACA immigration program, and the rights of the LBGT community—all of which are at great risk of being voted against by a court with a 6-3 conservative majority, the likely composition if the Senate votes on Trump’s nominee before the next president take’s office.
It requires a vote of at least 50 of the 53 sitting Republican senators to confirm Trump’s nominee. Although Democrats were praying, wishing, and hoping, four Republican senators would refuse to vote for Trump’s nominee, and defer to the incoming president to nominate Justice’s Ginsburg replacement, that’s highly unlikely. As of Tuesday, 51 of the Republicans signaled their intent to vote for the nominee, ignoring Justice Ginsburg’s dying wish to allow the incoming president to nominate her replacement.
As bleak as the situation looks, this is no time for Democrats to despair.
Although this could change, it’s possible the confirmation vote will take place after the presidential election, during the “lame duck” session of the Senate. If the Biden/Harris ticket is elected by a huge landslide, with Democratic majorities in the House and Senate, this would make the “lame duck” session more lame and weaken the possibility of the confirmation vote taking place.
Should the vote proceed, and a new justice confirmed before the election, or during the “lame duck” session, a Democratic president, and Democratic-led House and Senate, will have the option to expand the seats on the Court by appointing more liberal justices to balance the Court’s ideological component. Most likely, such a move could be raucously controversial. However, it’s not unconstitutional to expand the number of seats on the Court.
Now, much is dependent on the turnout of Democratic voters in the ensuing presidential election. Truly, the lives of millions of Americans depend on this vote.
If Democrats want to make changes in the White House, and Congress, as well as ensure the Supreme Court isn’t lost to the marginalized communities that depend on it rulings, the have to encourage their voters to vote early and heavily.