Illustration by Maria DeSimone
On Friday, Sept. 18th, the American people lost an icon. Finding rest after a 21-year-long battle with cancer, Ruth Bader Ginsburg, a brave pioneer for many of the women’s rights we see today, passed away, leaving behind a long-standing judicial legacy. Being the second female justice of the Supreme Court may have been her biggest accomplishment, but she also managed to be the first female in the Harvard Law Review, the first female professor to gain tenure at Columbia University, a shoulder for President Barack Obama to lean on when he signed his first piece of legislation, Lily Ledbetter Fair Pay Act of 2009, but also a matriarch, and a gentle but spry ally in emboldening those seeking equality. Her passing was a tragedy, but in today’s political atmosphere, it was the spark that would rekindle a key Congressional battle over the confirmation of her successor.
Supreme Court battles are not rare, and each conservative vs. liberal appointment ignites debate and controversy. However, the court has leaned liberal since the start of Ginsberg’s time in the seventh chair, with somewhat-centrist Chief Justice John Roberts as the swing vote of the nine. In President Donald Trump’s administration, he has appointed two conservative justices, and if he is successful in replacing Ginsburg, it will not just flip a liberal seat. If the Republican-held Senate proceeds in its intentions of holding a vote before November 3rd and confirms a nominee, this will give the conservative faction of the court a 6-3 majority, which has caused some liberals to question the fate of key decisions like Roe v. Wade and the upcoming Affordable Care Act decision, which takes place a week after the election.
Only an hour after Ginsburg’s death was announced, Senate Majority Leader Mitch McConnell (R-KY) was quick to announce that whoever the President nominated would have a vote in the Senate. It did not take an hour for accusations of hypocrisy and unprecedented partisanship to arise in response. Pundits quickly unsheathed their best weapon: the words of the GOP members. Many cited one of Sen. Lindsey Graham's (R-SC) past quotes, where he said, “ I want you to use my words against me, If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, 'Let's let the next president, whoever it might be, make that nomination.'” While the blow-for-blow makes for great political theater, it seems as if all hope of negotiation off the table.
Graham's quote references the 2016 presidential nomination of Merrick Garland, President Obama’s nominated replacement for the conservative Justice Antonin Scalia. The Republican-held Senate refused to hold a vote on the justice, claiming that the change of power in the Senate in 2014 signified that the people wanted to place a check on the Supreme Court nominations of the then president, therefore the vote should wait until the 2016 presidential election. Senate Democrats took the opposite side, stating that they must fill the vacancy in the court and that the president’s nominee had a right to undergo confirmation hearings and have a vote on the floor of the Senate.
Four years later, Senate Republicans are hastily projecting the complexity of their prior actions, asserting that the main reason was that the Senate was flipped in 2014 in discord from the President’s party, not that it was in an election year. Time certainly is not on their side. If the nominee, Amy Coney Barrett, is confirmed anywhere within Trump’s projected timeframe, Senate Republicans will have to force a vote mere weeks or even days before the election. They have secured the necessary votes, but if the proceedings occur in a lame-duck session after Joe Biden wins, all credibility will be lost.
The Democrats face a different problem: they have no say in the matter. The since-redacted filibuster laws in the Senate have left policymakers with no recourse. This has led to much grandstanding speech about hypocrisy and an attempt to voice their concerns to influence swing voters in the Republican majority. They can hope to flip an up-for-election senator or two because the Republicans can only lose four votes and still get this through. Two senators, Lisa Murkowski and Susan Collins, have already stated that they will be withholding their votes. They are not entirely without recourse, however, in the sense that they already may be planning their political retaliation. Sen. Chuck Schumer (D-NY) stated on a call with his caucus that, “if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table.” This has led many conservative pundits to question the Democrat’s intentions of fundamentally altering the federal composition in this country, from adding new seats to the Supreme Court, adding Washington D.C. and Puerto Rico as states, and even abolishing the electoral college. The scenario as a whole adds more speculation into the entirely unclear future of this country after election day.
As all things will be in the upcoming weeks, this may have a significant impact on the presidential election. Some are calling this a rare victory for the incumbent because he is well within his rights to appoint, and adding a conservative justice can add to his appeal to on-the-fence conservative voters. This also puts the Biden campaign in a pinch, because amidst the strong sentiment against Donald Trump, he has some work to do to separate himself from the far-left wing of his party. Biden rejected the notion of packing the courts last year, even stating that his party would “live to rue that day,” but has since declined to make any conclusive comment on the matter. When asked, Former Vice President Biden speculated that this will only amount to a distraction from the perverse direction that Donald Trump is leading this county in. The Former Vice President stated, “It’s a legitimate question, but let me tell you why I’m not going answer that question. Because it would shift all the focus. That’s what [Trump] wants. He never wants to talk about the issue at hand. He always tries to change the subject.”
Most likely, only time will tell if this will animate voters, and who it will benefit. What we do know, however, is that if Republicans do move forward with this, it will only add fuel to the increasingly polarizing battle over the future of our nation.