Saturday, September 19, 2020


The departure of Justice Ruth Bader Ginsberg from the U.S.
supreme court just before the 2020 national elections will
initially be regarded as more significant politically than it
really is. Justice Ginsberg, whether one agreed with her
decisions or not, deserves the tributes she will now receive
for her formidable contributions and service to her
profession, and for her gritty endurance in her final years.

Her departure, however, was already known to be imminent,
and the choice to replace her already a major issue in this
election cycle.

The court now has eight members for its new term. The
political division now is five conservatives and three liberals
--- although Chief Justice John Roberts. a conservative, has
on rare, but high-profile, cases sided with the liberals. His
role as a swing vote on the court is now reduced to perhaps to
an occasional tie vote (although he is known to dislike such

Pro-life and pro-choice advocates might now suggest that
their base voters will now increasingly vote this year, but
behind that partisan rhetoric is the reality that the two
opposing bases were already close to maximum intensity,
and turnout based on this and other social issues which are
likely to come before the court was already certain to be
very high.

Although Republicans control the U.S. senate 53-47, they don’t
visibly have the votes now to confirm Ginsberg’s successor.
Senators Susan Collins, Lisa Murkowski, Mitt Romney, and
two or three (or more) GOP incumbents in tight re-election
races might balk at a vote before the election.

As I have already pointed out, conservatives now have a
stronger majority on the court, and don’t really need an
additional vote for the current term.

President Trump has already made public the list from
which he would make his next nomination; Joe Biden has
strategically refused to do so, but now will face  much
pressure to disclose his own list.

Republicans also established a precedent in 2016 of
refusing to confirm then-President Obama’s supreme
court nominee because it was an election year. It might
be problematic to try to explain what was different now in
2020 with the Ginsberg replacement.

It would seem to be an unforced error, then, for
President Trump and the Republicans to try to push
through a supreme court nominee before the election.
They don’t need it, they probably don’t have the votes to
do it, and they would risk turning off undecided voters by
trying to do it before November.

President Trump will almost certainly nominate someone
for the vacancy soon. The confirmation process will begin.
The nominee would be an issue in the presidential
campaign and would distract voters from other issues.
This might provide a net benefit for Mr. Trump, or it might
be a net benefit for Mr. Biden.

In any event, the court vacancy is one more complication in
a year already overflowing with complications.

Copyright (c) 2020 by Barry Casselman. All rights reserved.

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