The opportunity to reinforce the conservative majority in the Supreme Court was the great mobilizing factor of the Republicans in 2016 and Trump was already using it as an electoral weapon
The death of Justice Ruth Bader Ginsburg fell like a bomb on the United States electoral campaign on Friday, with an expansive wave that will transform all American politics for the next 50 days and whose potential long-term consequences are just beginning to emerge. to sense. The battle around the appointment of the new magistrate, which corresponds to propose to President Donald Trump, is from today the main campaign issue. The movements began just minutes after the news, with Ginsburg’s obituaries half-written.
He United States Supreme Court he is the ultimate interpreter of the Constitution. It is made up of nine magistrates, whose mandate is for life. The names are proposed by the president and confirmed by the Senate. The magistrates are nonpartisan, but they are ideologically in tune with the president who appointed them and, therefore, with the historical moment in which they were elected. Until today there were five judges considered conservative in the Court and four considered progressive.
Gibsburg’s death opens a vacancy that, if filled with a Trump-nominated magistrate, would cement a conservative six-to-three majority in the nation’s top judicial institution for surely decades. That court, Democrats fear, would block progressive advances for a couple of generations, or even reverse issues like abortion.
There has always been partisan tension around the Supreme Court, which is the last dam against the excesses of the president and Congress. But this tension got off the rails of tradition and norms in 2016. In February of that year, curator Antonin Scalia died. President Barack Obama nominated a moderate progressive magistrate, Merrick Garland. Republicans had a simple majority in the Senate, so they controlled the proceedings. The Republican leader, Mitch McConnell, decided to block the appointment. He didn’t even call Garland’s confirmation hearing. The argument was that it was an election year and that the next president should make the proposal. “The people have to have a voice” in the process, McConnell argued to the amazement of the White House, Democrats and the judiciary.
Indeed, the people spoke. An eccentric candidate named Donald Trump won the Republican nomination despite skepticism, if not open opposition, from much of the party. The main reason why he had the disciplined vote of all Republicans in November was the possibility of naming Scalia’s replacement. In a conference, Mitch McConnell acknowledged that “the most important issue, the one that gave Trump 9 out of 10 Republicans, was the Supreme Court.”
According to subsequent polls, 26% of Trump voters said the court was the most important factor in voting. Of those who said the court was “the most important reason” for deciding the vote, 56% voted for Trump. In other words, the possibility of changing the majority in the Supreme Court was a much more intense mobilizing factor among Republicans than among Democrats. Recent polls show that this is no longer the case, and Democrats have understood the importance of the Supreme Court. In a Pew poll, 66% of Democrats and 61% of Republicans said the appointment of Supreme Court justices is “very important” in their decision.
Trump more than met the Republicans’ expectations. As soon as he became president, he proposed to conservative judge Neil Gorsuch, 50. The Senate, with a slim Republican majority, confirmed it in April 2017. To do so, McConnell had to use the so-called “nuclear option.” He changed the Senate regulations so that a simple majority would suffice, instead of the reinforced majority that was required until then, a safeguard that allows the opposition to block the appointment and forces the majority not to go to extremes. Democrats are still denouncing that appointment as a “stolen magistrate” from Obama.
The withdrawal of Justice Anthony Kennedy in 2018, scheduled to have his replacement also appointed by Trump, led to the bitterest confirmation in recent times. Trump named 53-year-old Brett Kavanaugh. Kavanaugh was mercilessly investigated and questioned by Democrats. His confirmation came again at the slightest and only after he had to answer about his problems with alcohol and gambling and an accusation of sexual abuse as a teenager.
The age and health problems of progressive Justice Ruth Bader Ginsburg were already a factor in this election campaign. Despite her extraordinary resistance, few missed that it would be difficult for her to last four more years in service. Her death six weeks before the elections makes that possibility an immediate and urgent reality. The Supreme Court factor had become a secondary issue in these elections, turned into a plebiscite on the figure of Trump and her scandals. No longer. From this Friday it is a capital issue.
Ginsburg was well aware of this situation. According to the public radio NPR, days before his death he dictated a letter to his niece in which he said: “My most fervent wish is that I not be replaced until there is a new president.” It is his last wish, on his deathbed.
Within an hour of the news, Mitch McConnell said in a statement what Republicans expected to hear and Democrats feared: “Americans re-elected our majority. [en el Senado] in 2016 and expanded it in 2018 because we promised to work with President Trump and support his program, particularly his extraordinary appointments of federal judges. Once again, we will keep our promise. President Trump’s nominee will be voted on in the Senate. ” The contradiction with 2016 is absolute, but not surprising. McConnell had already said that he would renew any vacancies that occur. “It is the most momentous decision that can be made” in the Senate, he said at a conference this year, in terms of long-term impact on the country.
Democratic reactions were immediate. The most important, that of candidate Joe Biden. “I’m going to be clear: the voters must choose the president, and that president must choose the replacement for Justice Ginsburg.” Within hours, McConnell and Biden, who was vice president in 2016, had swapped roles.