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The Future and the Soul of SCOTUS

Published by IDSA on

Ruth Bader Ginsburg’s death has opened up a political battle…

…over the future of the Supreme Court. The vacancy on the bench creates what many conservatives view as a once-in-a-generation opportunity to move the makeup of the court from its current split of 5 conservative and 4 liberal judges to a more dominant 6-3 majority. The importance of such judicial nominations to Republicans cannot be understated, as federal judges often serve lifetime appointments.

The POTUS has picked conservative federal appeals court judge Amy Coney Barrett as his Supreme Court nominee as he moves to shift the apex court further to the right and sets up a heated Senate confirmation fight less than a few weeks before the U.S. election.

Senate Majority Leader Mitch McConnell has enough votes to push through Judge Barrett’s nomination. Only a simple majority of 51 votes is needed to confirm a new justice, and there are 53 GOP senators currently. Trump and the conservatives are pushing the Senate leader to confirm her before November 3. Republicans are looking at holding hearings before the Senate Judiciary Committee in the middle of October and a floor vote by late October – just about a week before Election Day.

Back in 2016, Senate Republicans refused to even consider President Barack Obama’s nomination to replace Justice Antonin Gregory Scalia with Judge Merrick B. Garland, who was announced 237 days before Election Day, on the grounds that voters should get to choose the president and that president should get to pick the next justice.

In picking Judge Barrett, a hero to the anti-abortion movement, Trump could hardly have found a more polar opposite to Justice Ginsburg, a pioneering champion of women’s rights and leader of the liberal wing of the court. The appointment would shift the centre of the gravity considerably to the right, giving conservatives six of the nine seats and potentially insulating them even against defections by Chief Justice John G. Roberts Jr., who on a handful of occasions has sided with liberal justices. If confirmed, Judge Barrett would become the 115th justice in the nation’s history and only the fifth woman ever to serve on the Supreme Court.

Both parties intensely care about the SCOTUS. But now, there is the potential for a Supreme Court nomination in the middle of the election. For Trump, this is a HUGE opportunity for two reasons. First of all, the nomination process might distract the media and public’s attention away from his mistakes in handling the COVID-19 outbreak- giving way to excite conservatives who really care about judicial nominations, such as issues like abortion. Second of all, Trump is struggling in particular with women voters. By picking a woman to replace Ginsburg, he could make his nominee part of his pitch to women voters.

Right now, the court is split between five conservative jurists and three liberal justices until a replacement is confirmed. As previously mentioned, Chief Justice John Roberts has recently sided with the liberal justices in critical cases, raising the spectre of 4-4 split decisions in upcoming cases. The potential for tie decisions is concerning given the upcoming election. The pandemic is expected to lead to a significant increase in mail-in voting, and there are currently several election-related cases pending in both state and federal courts.

Moreover, the results of the election may not be clear on the night of November 3. The Supreme Court has settled contested presidential elections in the past. In 2000, its 5-4 ruling in Bush v. Gore stopped Florida’s recount and handed the presidency to George W. Bush by a margin of 537 votes. If a major case that could determine the election reaches the court this fall or winter, it either will be shorthanded – raising the potential of a tie vote – or be controlled by a new six-member conservative majority.

Trump is not just thinking about electoral lawsuits in rushing to confirm a conservative replacement for Ruth Bader Ginsburg. He needs to showcase his commitment to the conservative cause to charge up his voter base.

This year has already been one of the strangest and most unpredictable election years, but being 2020, this year did not fail to deliver. Donald Trump has tested positive for the coronavirus. Many of the Trump aides or contacts who have recently tested positive for COVID-19 attended the White House festivities honouring Amy Coney Barrett on September 26. Officials in the White House have carefully calibrated their statements about the President’s health, putting the best face on the diagnosis at a time when he is only 30 days from Election Day.

— Szebasztian Simity is an Associate Editor at the FA Bulletin, currently majoring in Political Science at the University of Szeged —