A Race to Fill the Supreme Court Ensues After Justice Ginsburg’s Death

In the late afternoon of Friday, September 18, Supreme Court Justice Ruth Bader Ginsburg passed away at the age of 87 due to complications from pancreatic cancer in her home in Washington, D.C. This came just 45 days away from the general elections in November. With a Supreme Court justice death so close to the election, the fight to fill her seat will have a number of political implications.

Appointed by President Bill Clinton in 1993, Ginsburg has always been a liberal-leaning justice. She made key votes on issues like abortion, LGBTQ rights, health care, immigration, voting rights, affirmative action, and more. She fought for women’s rights, in cases like U.S. v. Virginia, and tried to turn the country into a more liberal, inclusive one.

But now, all that progress could be lost.

A fight is now about to ensue: the battle to fill Justice Ginsburg’s seat.

Back in February 2016, when Justice Scalia died, Senate Majority Leader Mitch McConnell refused to hold a vote on the nomination of then-President Obama’s nominee for the Supreme Court. He claimed that the American people should have a voice in choosing the next justice. And so, when Donald Trump won the 2016 election, a conservative justice, Neil Gorsuch, was appointed onto the Supreme Court. Now, however, McConnell is backing up on that promise. He claims that it only applies when the presidency and the Senate are controlled by different parties. And he said, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” Clearly, the Republican Party is showing little willingness to place principle above party.

There have only been two instances of a Supreme Court justice dying closer to the election than this year: in 1864 and 1956, both less than a month before the election. In both instances, the president won reelection and nominated a replacement after Election Day. By historical standards (and also McConnell’s previous standard), Trump should not nominate anyone unless he won again in November, since there are less than two months till the election.

In addition, it’s not likely that the confirmation process could finish in just 45 days. However, this creates the possibility that even if Trump loses reelection and Republicans lose the Senate, the lame-duck president and Congress could force through a confirmation, which is sure to enrage Democrats and the American public.

Also, the Supreme Court is going to be a big deal this election season. Should there be any electoral disputes that make it to SCOTUS, with another Trump nominee on the court, that is bad, bad news for Democrats. It is also possible for there to be a 4-4 deadlock in the court, making an already drawn-out electoral process even longer.

This is also a big deal to many senators. GOP incumbents like Susan Collins of Maine, Martha McSally of Arizona, and Thom Tillis of N.C., already under fire for confirming previous Trump nominations, may be in even greater danger of losing their seats if they confirm another Trump justice. This is especially a big deal for longtime incumbent Susan Collins, who is being heavily criticized by Maine voters for confirming justices Gorsuch and Kavanaugh. She eventually said that she wouldn’t vote to confirm a nomination. The other two, however, came out in full support of doing so.

Also, many liberal victories, like health care and abortion rights, are in danger of being wiped out with six conservative Supreme Court justices. With Democrats previously already touting the idea of increasing the number of Supreme Court justices to make up for the GOP’s court packing, the Supreme Court is drumming up to be a major electoral issue.

Since Arizona’s Senate election is a special election, if Mark Kelly wins his election, he can be sworn in by the end of November, meaning that only three Republican senators will have to break for the Democrats. Two Republican senators have already said no: Susan Collins of Maine and Lisa Murkowski of Alaska (who opposed a vote in 2016 and decided that the same standard must stay). Only one senator needs to break for the nomination to fail, assuming all Democrats vote no. Some possible Republicans that may vote no include Mitt Romney of Utah, Chuck Grassley from Iowa (who opposed a vote in 2016 when Obama tried to nominate a justice), or Cory Gardner from Colorado.

We still do not know if there will be time to confirm a nomination before Election Day, or if McConnell will force a vote through in the lame-duck session. If Democrats want to ensure court integrity, they will need to stall until January, and ensure they win both the Senate and the presidency.

With a Supreme Court seat now up on the ballot, this election is extremely high-stakes. I will have more discussions on the Senate, which is now drastically more important this election year, coming out soon as the situation unfolds. If you are eligible to vote, please make sure you do register to vote. Early voting has already begun in some states.

Ruth Bader Ginsburg will be missed by all freedom loving people around the world. May she forever rest in peace.