The president considers his “obligation” to name a candidate before the elections of November 3 and opens a process called to mark the campaign
US President Donald Trump has made it clear that he is about to start the process to try to fill, before the November 3 elections, the vacancy left in the Supreme Court by Justice Ruth Bader Ginsburg, who died on Friday at 87 years old. On Saturday morning, Trump ordered the flags at the White House and other official buildings to fly at half mast. Then, clearing up any doubts, he has urged the Republican senators to take into consideration “without delay” his nomination to fill the vacancy in the Supreme Court. “We were placed in this position of power and importance to make decisions by the people who proudly elected us, the most important of which has long been considered the selection of Supreme Court justices. We have this obligation, without delay! ”, has tweeted.
The president, who on Friday night had issued an official statement in terms of respect and mourning for the magistrate, without mentioning the political situation that has been created, thus aligns himself with the intentions expressed that same night by Mitch McConnell, leader of Republican majority in the Senate: “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 in the Senate, “he said, just an hour after the death of a true legend of American justice and icon of the left.
With these two statements, a high-voltage political battle is launched that will define the rest of the electoral campaign. The memory of what happened in 2016 jumped to everyone’s mind. In February of that year, conservative Antonin Scalia died, and President Barack Obama nominated a moderate progressive magistrate, Merrick Garland. The Republicans had a simple majority in the Senate, so they controlled the procedures, and McConnell decided to block the appointment. 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. The contradiction with his statements on Friday is clear.
“There is no question that the voters must choose the president and the president must choose the judge for the Senate to consider,” Joe Biden said Friday night. “That is the position that the Republican Senate took in 2016, when there were 10 months left for the elections, and it is the one it must take now.” Biden even tweeted McConnell’s exact line from four years ago.
Since then, the polarization around Supreme Court appointments has only increased. Trump, the most unpopular president in decades, has already appointed two justices. The prospect of him naming a third party is an unaffordable prospect for Democrats. If the Ginsburg vacancy were filled with another conservative judge, a conservative majority of six to three would be cemented in the highest court in the country. Appointments are for life. Such a majority would allow conservatives to win cases even when one of their judges decided to vote with progressives. That court, Democrats fear, would block progressive advances for a couple of generations, or even reverse issues like abortion rights.
A battle for the confirmation of the candidate proposed by Trump in the Senate, in parallel to the electoral campaign, would throw at the center of the political debate a series of explosive issues, from abortion to religious freedom, passing through the regulation of immigration or the protection of the environment, all matters that are on the table of the Supreme. It would completely upset, filling it with high-voltage political substance, a campaign that the two candidates have tried to stick, with remarkable success, to two fetish themes: Trump’s ill-fated handling of the pandemic, in the case of Democrat Joe Biden, and the message of law and order, in the case of the president and republican candidate.
But even before Ginsburg’s death, Trump himself had made clear his desire to introduce the issue of the judiciary in the final stretch of the campaign. Just 10 days ago he repeated the unusual move, which worked so well for him four years ago, of publishing a list of potential candidates to fill vacancies in the Supreme Court, in a nod to that conservative electorate that does not connect with Trump’s extravagant ways, but is willing to tolerate them if the end is an armored judiciary to the progressive social agenda.
Days before her death, as reported by public radio NPR, Ginsburg issued a statement to her granddaughter Clara Spera, which read: “My most fervent wish is not to be replaced until a new president assumes power.”
It’s unclear whether Republicans could name Ginsburg’s replacement before the election. Procedures in the Senate take time and a confirmation of this type usually takes two to three months. Doing it at full throttle would add even more tension. In addition, even if Biden won the presidency and the Democrats won the majority in the Senate, Trump remains president until January 20 at noon and the Republican senators remain in their seats until the end of December, so they could also do so in the period interim.
In practice, with the laws and regulations in hand, Democrats would have a very hard time opposing that confirmation. But several options open up. First, that there are at least four Republican senators who announce that they would not confirm Trump’s candidate, so McConnell would not have a majority. There are at least four declarations of them promising that they would not do it and that they would apply the same criteria to a Republican president as to Obama. The most important, Lindsey Graham, who is the chairman of the Justice Committee, the one who must carry out the confirmation of the magistrate. Graham is also up for re-election on November 3 in South Carolina. There are 23 Republican senators (including McConnell), whose decisions on this matter are shaped by their chances of re-election, not just by what Trump and McConnell say.
Another factor to consider is that the Democratic vice presidential candidate Sen. Kamala Harris also sits on the Justice Committee. A confirmation process would give Harris the opportunity to publicly tear up the magistrate candidate, as he did with Judge Kavanaugh. That performance was decisive in raising her profile among the general public in order to launch her candidacy for president and make her one of the best known Democratic figures in the United States.
Democrats circulated another possibility since Friday, also in electoral terms. It would consist of promising that, if the White House and the majority in the Senate win on November 3, they will expand the number of Supreme Court justices. The number of nine judges is not written in the Constitution, but in a law. It has been varying between 6 and 10. That way, they would guarantee to counter the three Trump appointments. The calculation, apart from the practical consequences, is that it would be an important electoral claim to mobilize the vote, just as the 2016 vacancy was essential to bring to the polls the Republicans who detested Trump.