by Chris Ball

Ruth Bader Ginsburg sat on the United States Supreme Court for 27 years. She authored countless judicial opinions on issues ranging from abortion rights, gender discrimination, and the landmark 2000 case of Bush v. Gore where she penned her now-famous line, “I dissent.” Justice Ginsburg passed away on September 18 from complications of pancreatic cancer. Her death lead to an outpouring of sadness, grief, and celebration of her icon status as a pioneer for the advancement of women’s rights and a brilliant jurist and lawyer. 

As difficult as it is to do, the American political system must now decide how to proceed in the wake of the vacancy that now sits at the heart of the United States Supreme Court. Republicans and Democrats are forming the battle lines already, in advance of the election on November 3^rd. The opening salvos have already gone out. The first one began even before Ruth Bader Ginsburg passed away. 

According to Ginsburg’s granddaughter Clara Spera, the Justice dictated a statement to her that read: “My most fervent wish is that I will not be replaced until a new president is installed.” The fact that Ginsburg felt the need to utter these words when she knew she was in the last days of her life tell us all that we need to know about the importance with which she viewed the role of the Supreme Court in the coming years. 

If the 2020 election is indeed a battle for the very future of this country, Ginsburg’s dying wish represents a call to arms in a battle to replace her in the country’s highest court, whose ability to shape law, policy, and affect the everyday lives of the American people has grown exponentially in the past half decade.    

After initially stating that he would nominate Ginsburg’s replacement the week of September 21^st, President Donald Trump pushed back the announcement out of respect for the former Supreme Court Justice’s family.

On Saturday Trump announced that he will nominate Amy Coney Barrett. Judge Barrett currently serves on the U.S. Court of Appeals for the Seventh Circuit, a position she was appointed to by none other than Trump himself. 

Trump’s announcement that he would quickly push ahead and nominate a replacement sent Democrats into a frenzy of fervent anger and has kickstarted a non-stop news cycle that may even come dwarf coverage of the Coronavirus. 

The questions are, how did we come to this, and what could happen if Trump’s nominee is appointed to the Supreme Court? 

How we got here is harder to explain. Concerns about the power of the Supreme Court and the judges that comprise it have been hotly debated since it was created in 1789. However, the nomination process itself has often been something that gets overlooked when compared to the decisions that the Supreme Court hands down and the way it functions. 

This all began to change in the late 1980s. In 1986 Antonin Scalia was confirmed in the Senate by a vote of 98-0. However, the failed nomination of Robert Bork in 1987 and the contentious confirmation of Clarence Thomas in 1991 changed the political landscape for Supreme Court nominees irrevocably. Of note, Joe Biden was the Chair of the Senate Judiciary Committee for both Bork’s and Thomas’ confirmation hearings and, as some argue, is the architect behind the transformation of the hearings into a “game of political revenge.” 

Things only worsened in 2000. That election was so close that the Supreme Court was called upon to weigh in on Florida’s recount. In a razor-thin 5-4 decision the Supreme Court essentially held that George Bush was the victor in Florida, whose electoral votes were enough to win the day and the Electoral College, despite losing the popular vote by nearly half a million ballots. Polls at the time showed that the large swaths of the American people did not lose confidence in the Supreme Court after it decided Bush v. Gore. For their part, Democrats seemed more focused on the Electoral College and George Bush’s ability to win the Presidency despite losing the popular vote. 

Another important development came about in 2013 and involved the “Nuclear Option” in the Senate. For decades, voting on Presidential judicial appointments (at any level) was by a super-majority in the Senate, or 60 votes. However, in 2013, Democrat Harry Reid invoked what was dubbed the “Nuclear Option” and lowered the threshold for approving Barack Obama’s appointments to a simple majority of 51 votes. Then, in 2017, Mitch McConnell had the votes to extend this “Nuclear Option” to the confirmation of Supreme Court Justices to confirm Neil Gorsuch’s appointment. Going forward, a nominee for the Supreme Court needed only 51 Senate votes for confirmation.  

The Supreme Court and the confirmation process again came to national attention in 2016 when Mitch McConnell refused to even allow the Senate to consider Merrick Garland, Barack Obama’s nominee to replace the deceased Scalia. In a 2016 Opinion piece in the Washington Post, McConnell stated: 

“Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.” 

He later went on to claim that the Senate had the power, under Article II, Section II of the Constitution to withhold its consent on the nomination. In his view, the Senate was right to do so since Barack Obama was in the final year of his second term, and 2017 would see a new President sworn in. Though Democrats were extremely unhappy with this act, there was little they could do to stop it. 

Hillary Clinton’s 2016 loss to Donald Trump only cemented the belief in some Democrats’ minds that the very systems of elections and government in the United States were flawed on a fundamental level. The focus again centered on the Electoral College that allowed Trump to secure the Presidency despite losing the popular vote by 2.87 million votes. However, this time there was something else. 

After Trump’s election, the American people seemed to pay more attention to politics and the national media scrutinized his every decision, tweet, and rally. This included his nomination of Brett Kavanaugh in 2018. More than 20 million people watched Kavanaugh’s confirmation hearing, which was “an audience size similar to that for a playoff football game or the Academy Awards.” His life and confirmation hearing were the focus of at least two books that were published in what seemed like real-time, as well as countless articles, opinion pieces, and more television panels than anyone can reckon. This was no doubt due to a confluence of the MeToo Movement, the allegations leveled against him, and the fact that Donald Trump was about to nominate his second Supreme Court Justice (after Neil Gorsuch in 2017). But with Kavanaugh, perhaps more than any other nominee in recent memory, there was a real argument about the fundamental function of the Supreme Court and the process that the President and Senate go through to appoint its Justices. Kavanaugh’s confirmation incited more than just ire from the Democrats, it only further confirmed their belief that now the Supreme Court, too, had become irrevocably corrupted. 

Now, with the passing of Ruth Bader Ginsburg and the vacancy it leaves in the Supreme Court, in an election year, the political firestorm of judicial appointments and confirmation will again be at the center of our discourse. 

But this time it will be different. 

This is due largely to the confluence of several key factors, which include the Democrats’ disillusionment with the Supreme Court, the Electoral College, the recent contentious nomination proceedings in the Senate, and McConnell’s alleged hypocrisy in blocking a vote on Merrick Garland’s appointment while allowing one on Trump’s pick to proceed.  

So what can the Democrats do if Trump’s nominee is confirmed? 

While the Electoral College is frequent fodder for angry Op-Eds and it makes a nice sound bite for talking heads on television, the truth is that it is not going anywhere anytime soon. According to the American Bar Association and The National Archives, “over the past 200 years more than 700 proposals have been introduced in Congress to reform or eliminate the Electoral College” but none have been successful, for one simple reason. To eliminate the Electoral College would require amending the United States Constitution. Since this is unlikely to happen, there is one Constitutionally-recognized way that the Democrats could punish McConnell, Trump, and the Republicans. 

Court packing.   

Though the name sounds ominous and illegal, if the Democrats manage to win back the Senate, keep control in the House, and vote Joe Biden into office, it is a term that Americans should begin to get very familiar with. 

The amount of justices on the United States Supreme Court isn’t fixed by the Constitution. All that Article III, Section I states is that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” This provision makes it clear that Congress is the branch of government that is to fix the number of justices on the Supreme Court. 

The Supreme Court began with just six justices. Through various acts of Congress, the number has grown to as many as ten before settling to the current total of nine. History is replete with examples of how legislative acts have influenced the makeup of the nation’s highest court. 

And that’s just what Democrats have threatened to do if Biden is victorious and they gain control of all branches of government in November. If Democrats control both houses and the Presidency, it is within their power under the Constitution to expand the number of Justices on the Supreme Court, just as Mitch McConnell has consistently stated that his efforts to block a vote on Merrick Garland and to obtain a vote on Trump’s replacement for Ginsburg are Constitutionally supported. 

This is why McConnell, Trump, and other Republicans must be very wary of the way in which the voting public (especially independent and undecided voters) view their tactical decisions on this appointment. Current polls show that a plurality of Republicans actually favor waiting until after the election to replace the vacant Supreme Court seat. Susan Collins, a Republican facing a very tough re-election bid in Maine, issued a statement urging the same. Some Never-Trump Republican writers have advised cutting a deal with Democrats wherein Republicans would agree to hold off on naming a replacement in exchange for a promise that Democrats won’t add additional justices should they take the reigns of government in 2021. 

However, with the recent announcement that Republican Senator Mitt Romney would, indeed, support a vote on Trump’s nominee, McConnell has likely secured all of the Senate votes he needs to push the process forward, and dashed the hopes of any kind of compromise on the issue.  

As if the November election wasn’t already polarizing enough, the appointment and confirmation of Amy Coney Barrett could play a significant role in mobilizing voter turnout for Democrats. Their donors gave 42 million dollars in a single day following Ginsburg’s passing. 

All signs point to Trump and McConnell successfully nominating a replacement for Ruth Bader Ginsburg, but they should be prepared for the potential fallout from Democrat and independent voters as well as for an expanded United States Supreme Court if they do.