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With the death of Supreme Court Justice Ruth Bader Ginsburg, a new and very important battlefield has opened between Republicans and Democrats in American politics, just over a month before the presidential election and at a time already marked. by historical and highly divisive events. such as the coronavirus pandemic and protests against racism. Indeed, President Donald Trump has already said that he wants to proceed with the appointment of Ginsburg’s successor, an election that, while constitutionally legitimate, has been heavily criticized by Democrats and runs the risk of sparking another very tough fight between his supporters and opponents. The Constitution establishes that the appointments of judges are the responsibility of the president, but must be ratified by the Senate.
Before Ginsburg’s death, the Supreme Court consisted of 5 conservative and 4 progressive justices, a balanced composition that had led to decisions that were not taken for granted and, at times, close to the causes of the Democrats. Trump has already appointed two justices in his first term, Neil Gorsuch and Brett Kavanaugh, and now has the historic chance to further shift the balance of the Court, raising the number of conservative justices to 6 out of 9 with potentially huge and highly durable. that the judges can only be replaced in the event of death or resignation, and that all current members except one are under 73 years of age (and the only senior, moreover, is progressive).
The issue that angered Democrats has to do with what happened in 2016, when Conservative Justice Antonin Scalia died nine months after the vote and Republicans, who controlled the Senate, refused to consider Justice Merrick Garland. nominated by then-President Barack Obama, arguing that it was inappropriate for the president to choose the new judge months after the election, and that it was best to wait for a new president to take office. Although the country is in the same situation today and the elections are less than two months away, this time the Republicans are determined to proceed with the appointment.
What Republican Sen. Lindsay Graham said, for example, in 2016.
The leader of the Republican Party in the Senate, Mitch McConnell, announced this intention in the same statement in which he commented on the death of Ginsburg, generating much criticism. They can do it: they only need a confirmation vote in the Senate, where they have a majority and will hold it until at least January 3, when the new elected members will take office in November (all but one, but we got there). However, the tight deadlines are compatible with the appointment, which in the past used to take a couple of months, but even less.
– Read also: Chi was Ruth Bader Ginsburg
Trump has already said that he wants to name a woman in place of Ginsburg (who, however, had expressed shortly before his death a desire to be replaced by the winner of the November election, whatever that may be). The favorite seems to be Amy Coney Barrett, a Chicago federal judge who was a Scalia student and teaches at the University of Notre Dame. She is only 48 years old and is esteemed and respected, but she is considered highly religious and has expressed anti-abortion views in the past, although she has no record of verdicts confirming this orientation. According to Senate Democratic Leader Chuck Schumer, “it represents everything that Ginsburg opposed.” In addition to Coney Barrett, there is also talk of Barbara Lagoa, a 53-year-old Florida judge of Cuban descent, and Allison Jones Rushing, of Virginia, who is only 38 years old, so they are candidates who, potentially, could remain in the Supreme Court for forty. or fifty years.
The current majority of Republicans in the Senate is 53-47 senators. But there are some moderate senators who in the past have voted against the party’s guidance, for example on the abolition of Obama’s health care reform or the appointment of Kavanaugh, and have already mentioned that they will not vote to appoint a new judge before. of the new elections. They’re Lisa Murkowski from Alaska and Susan Collins from Maine – unless you change your mind, Republicans will start with 51 votes. Even if they lose another, and the Senate is split in half, Vice President Mike Pence would have the right to decide the vote for the Constitution.
The only way Democrats can avoid the nomination, if Trump actually proceeds with the vote, is for two other Republican senators not to follow the party. It is not an unrealistic hypothesis, but it is not yet clear how likely it is. Someone like Mitt Romney, a senator from Utah, a 2012 presidential candidate, and a proud Trump opponent, could possibly decide to wait for the winner of the election to be named, but he has yet to speak.
In any case, it would not be enough: and so the Democrats would have to find another senator. Particular attention is being paid to those senators who will be playing for reelection in particularly troubled states in November, and who may prefer not to risk too much exposure and compromise their reelection with such a controversial election. They talk about Martha McSally in Arizona, Kelly Loeffler in Georgia, and Thom Tillis in North Carolina. They are also important senators in the post-election voting scenario. If they lose, in fact, to confirm Trump’s appointment, they would have to use the last weeks of his term to vote on something very important as a Supreme Court justice. Something that Democrats and beyond would perceive as a grave institutional affront.
Then there are some strange, but not impossible, scenarios. In Arizona, the senator’s election is complementary, following the resignation of Jon Kyl, and therefore foresees that the senator elected in November will take office immediately and not on January 3. Current Democratic candidate Mark Kelly, astronaut and politician husband Gabrielle Giffords, has a good lead in the polls over Republican McSally. Therefore, the Senate could change its composition at the end of November, when the electoral result is certified: at that time the Democrats could win a seat and, together with the dissident Republicans, have a majority. Trump should make sure to vote as a Supreme Court justice before Kelly’s eventual inauguration.
Another possible obstacle is the result of the elections in Georgia, where the law states that if no senatorial candidate gets 50 percent plus one of the votes, there will be a runoff on January 5. Or, if there are particularly bad results, the procedures to certify the vote could go on for weeks (Minnesota’s in 2008 were only completed in the summer of 2009).
There are several possible scenarios. The first envisions that Trump will greatly speed up the nomination procedures and obtain a vote in the Senate before the presidential election on November 3. It’s difficult, but not impossible: For Ginsburg, for example, 50 days passed between the announcement and the confirmation vote. Republicans should do the math and avoid defections, and they should face overwhelming criticism, but it is still the best scenario for them.
If Trump fails or decides not to ask for a vote, fearing Senate defections, it would mean he would go at least after November 3. If Trump wins the elections there will be no problems of political opportunity: the appointment would depend on him, who would then have to deal with a new Senate, in which the Republicans could also lose the majority (it is a possible hypothesis). . At that point, you should find a name that some Democrats like, too.
– Read also: The other US elections in November
The third scenario is probably the most chaotic: Trump could lose the election but take advantage of the weeks before the inauguration of the new Senate and the new president to appoint a new judge. It would be a practically unprecedented affront to political practice and opportunity, because it would mean making a very important decision without any electoral legitimacy: and it is difficult for members of the Senate, even those of your party, to grant it.
But the chaotic scenarios have not ended, and these days the most daring rumors and theses have been circulating: for example, that Democrats may decide to impeach Attorney General William Barr or even Trump himself, in order to obstruct and extend the moment of parliamentary work, or that in the case of the appointment of a new Trump judge and the subsequent victory of the Democrats in the November elections, they can decide on the so-called “court packing”, that is, appoint two more Justices of the Supreme Court, bringing their number from 9 to 11. The number of justices of the Court, in fact, is not established by the Constitution: an ordinary law is enough to modify it. Joe Biden has previously said that he was skeptical of this hypothesis, for the simple fact that nothing would stop Republicans from appointing two more justices once they return to power.
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