The death of Supreme Court Justice Ruth Bader Ginsburg on Friday, and the effort by Republicans to quickly press ahead with action on a nominee to fill that seat, introduced a volatile new element into the 2020 race for President in what’s already been a campaign year upended by the Coronavirus outbreak.
As Senate Republicans signaled that they will press ahead quickly on a nomination by the President in the weeks before the elections, Democrats cried foul, pointing back to four years ago when the GOP refused to vote on a Supreme Court nominee because it was an elction year.
“The Senate should not consider any replacement for Justice Ginsburg until after the next Presidential inauguration,” said Sen. Dick Durbin (D-IL).
“We need a full court on Election Day,” countered Sen. Ted Cruz (R-TX). “The Senate must do its job and confirm a successor.”
Here are some thoughts on what comes next:
1. Trump isn’t going to wait on a nomination. In a campaign stop on Saturday, President Trump made crystal clear that he doesn’t want to see if he’s re-elected first before picking someone to fill the seat of Justice Ginsburg. “We said that if for any reason we have a vacancy in the United States Supreme Court, we will fill that vacancy,” the President said in North Carolina, as the crowd chanted, “Fill that seat!”
2. The President says he will choose a woman for the High Court. Without naming names, President Trump said this weekend that he will nominate a female jurist to replace Justice Ginsburg. The top name which comes immediately to mind is federal appeals court judge Amy Coney Barrett, but there was also new interest in Eleventh Circuit Judge Barbara Lagoa of Florida. She was part of a recent group of names from the President of people he might nominate to the Supreme Court.
3. Senate Republicans need 50 votes. With 53 Republicans, there is a small margin for error on a Supreme Court nomination, as already two GOP Senators have said they will not support a move to replace Ginsburg before the elections - Sen. Susan Collins of Maine, and Sen. Lisa Murkowski of Alaska. That means two more Republicans would have to stand up and publicly defy the President. But that would be one heck of a plot twist.
4. Republicans say 2020 is not 2016. Yes, four years ago Republicans said the Senate should not act on a Supreme Court nominee in an election year, when President Obama nominated Merrick Garland to replace the late Justice Antonin Scalia. And yes, they are now ready to do the exact opposite in 2020, arguing back in 2016, there was a Republican Senate and a Democratic President - and now things are different. Democrats were more than happy to replay their words from four years ago.
5. Look for Trump to talk much more about hot button issues. Having this opening on the U.S. Supreme Court will also allow the President to more urgently bring up issues like abortion, gun rights, the Obama health law, and other key items which will find their way onto the docket. “They want to get rid of the Second Amendment, they’re going to get rid of the guns,” Mr. Trump said on Saturday.
6. Biden says the winner should pick the new Justice. Four years ago, Democrats wanted a vote immediately on President Obama’s pick for the U.S. Supreme Court. They didn’t get that. Now they want the GOP to hold off, as Democratic nominee Joe Biden says the winner in November should get that prize. “As a new President, I should be the one who nominates Justice Ginsburg’s successor,” as Democrats are still mad about the lack of action in 2016 by the GOP on Merrick Garland’s nomination.
7. Can Senate Democrats stop a nomination? The simple answer is, no. Every Democrat can vote no, and it won’t matter unless four Republicans join them. There is no filibuster, no procedural hijinx involving denying a quorum, or having the House send over multiple impeachment resolutions, etc. Yeah, you can go through the Senate rule book and find all kinds of stuff, but if the majority wants to push something through, they will. The only question for the GOP is do they have 50 votes.
8. Trump says his pick is coming Friday or Saturday. Interviewed by telephone on Fox News, President Trump said Monday morning that he will wait for memorial services for Justice Ginsburg before naming a replacement, saying that could happen late this week.