Supreme Court Justice Ruth Bader Ginsburg passed away Friday night. Her passing comes at an awkward time for her country, in the midst of a heated presidential campaign as well as civil disturbances. The obvious question is what happens next? Will Republicans try to force through a new appointee with only 45 days to go before the election?
Mitch McConnell will definitely try and has already said as much in a statement Friday night in which he vowed, “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
This is awkward because McConnell insisted in 2016 that the appointment to replace Antonin Scalia, who had died that February, should be decided after the election. To force through a replacement for Ginsburg would be hypocritical, though not unconstitutional. Over the past few years, being hypocritical is not something that has bothered Republicans, however.
I believe that Ginsburg’s death will bring the left to the polls the way that Scalia’s death unified the right. Ginsburg’s seat is traditionally liberal and filling it with a conservative would fundamentally alter the balance of the Court. If you thought the Kavanaugh hearings were bad, you ain’t seen nothing yet.
If McConnell and company cannot close the deal before the election, the problem becomes more difficult. If, as seems likely, Donald Trump loses the presidency and the Republicans lose the Senate, it would be a political declaration of war to confirm Trump’s nominee.
There is a possibility that if the deal is not done by Election Day, it won’t happen. If the Republicans lose the White House and the Senate, especially by a large margin, some Republican senators may balk at forcing through Trump’s nominee.
Susan Collins and Mitt Romney leap to mind as likely crossover votes after Election Day. It is also likely that any Republican senator who loses would bow to the wishes of the voters. Senators who don’t might well be committing political suicide.
If the Republicans do succeed in confirming Trump’s nominee, the matter might still not be settled. There is already a movement among Democrats to pack the Court with more justices, which would, of course, be confirmed by President Biden. The pressure to pack the Court would be very strong if Republicans were perceived to have stolen Ginsburg’s seat. This would also be a political declaration of war.
The 2020 election was already contentious but now we have several opportunities to turn a bad election year into a civil war. If Democrats don’t riot and start a war when the Senate takes up Trump’s nominee, then Republicans may do so when Democrats pack the Court.
Neither course of action would be unconstitutional but neither would be good for the country. Opposition and anger to both courses of action would be understandable.
The best way forward for the country would be to let cooler heads prevail and follow the example of 2016 by letting the voters decide. With Donald Trump in the White House and hotheads on both sides, the chance of cooler heads prevailing is practically nil.
If you are a praying person, now would be a good time to pray for America as well as for Justice Ginsburg’s family and friends.
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