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  • Rich Klein

EDITORIAL: The Death of Ruth Bader Ginsburg & The Politics Of Picking A Replacement

We already knew the upcoming Presidential election would be filled with high drama in coming weeks.

But with the death of U.S. Supreme Court Justice Ruth Bader Ginsburg - some six weeks before Election Day - Republicans and Democrats are scrambling to revise their messages to make the next selection to the court a reason to support President Donald Trump or former Vice President Joe Biden.

Trump said on Saturday that he is set to make a pick as early as this week and it could be a woman.

Senate Majority Leader Mitch McConnell said on Saturday that whoever Trump nominates, that person will get a vote on the Senate floor this session. (Here’s a link to the typical process).

In October 1956, shortly before the Presidential election that year, President Dwight Eisenhower named William Brennan to the U.S. Supreme Court, using a recess appointment after Justice Sherman Minton retired. Trump has that option (of a recess appointment) as well.

But while Eisenhower picked a Democrat (and a Catholic from the Northeast) - hoping it would boost his re-election chances - we can’t imagine Trump doing something remotely similar. In a recess appointment, the justice would serve until the outcome of the Presidential election and then the President who takes office in January 2021 - Trump or Biden - would have to renominate that person and obtain confirmation from the new Senate.

That could be a risk for Republicans if Biden wins and especially if the Dems take back control of the Senate.

There’s also something called a lame duck session, that period in which Congress could reconvene sometime after Election Day through early January. It’s possible that McConnell could call such a session to get that vote to the floor, even as late as January 2, 2021. The new Senate begins on January 3.

So, let’s assume that Trump appoints someone this coming week. If Senate Majority Leader Mitch McConnell moves ahead with a vote this year, he would need a simple majority of 51 votes to confirm a new justice. That also means four Republican Senators voting with Dems against the nominee could sink Trump’s pick. On Sunday, Lisa Murkowski of Alaska became the second Republican senator to oppose moving forward with a nomination at this time. She joins Senator Susan Collins of Maine.

Of course, much of Trump’s base consists of devout Christians who would only accept a justice aiming to overturn Roe v Wade, the landmark 1973 decision giving women the right to have an abortion. And from early reports, at least some of the names being considered would want to do just that. Ironically, Trump is not a religious person and only became pro-life when he first contemplated a run for office. In 1999, for example, he told Tim Russert: “I’m very pro-choice.”

Democrats will likely this week make appeals to women that they could lose that choice with any pending Trump nominee. “The fate of our rights, our freedoms, our health care, our bodies, our lives, and our country depend on what happens over the coming months,” Planned Parenthood of America said in a statement after Ginsburg’s death.

In addition, Trump seems to be setting Americans up for a contested election should he be on the losing end. Whether he contests a loss - or the race is a nail-biter replay of Bush vs Gore in 2000 - Trump v Biden could also wind up at the Supremes.

But this time, there might be only eight justices on the Court if a Trump v Biden case is rushed to the High Court to decide the election. And that means the potential for a 4-4 deadlock on such a case or any case. Surely, a deadlock on determining the outcome of our election could create a Constitutional crisis and worse. Yet, without Ginsburg, the Court currently consists of five conservatives and three liberals. That means a conservative would have to vote with a liberal to create any deadlocked decision.

In addition, the Supreme Court is set to take up a case that could overturn the Affordable Care Act, thus eliminating the ability of millions with pre-existing conditions or who can’t afford it to obtain health insurance. That case, in which 20 states led by Texas seek to demolish the ACA, is before the court on November 10.

It’s important to remember that Republicans made a calculated decision in the Spring of 2016 when President Obama appointed Merrick Garland to the High Court upon the unexpected death of Justice Antonin Scalia. In short, Majority Leader Mitch McConnell put the kibosh on the appointment immediately and told the world that the next President (which ended up being Trump) should decide who gets appointed to the bench. Here’s a link to a document from PBS that shows what Senators said in 2016 vs 2020 about whether a sitting President or future president should pick a new justice so close to Election Day.

One month after taking office in 2017, Trump nominated Neil Gorsuch in February and then nominated Brett Kavanaugh in July 2018. Both were confirmed.

What are your thoughts about the sitting President getting to nominate a Justice so close to Election Day?


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