Ben Roback is Head of Trade and International Policy at Cicero Group.
RIP RBG. You will have seen those six letters plastered across news websites and social media since the death of Ruth Bader Ginsburg, the Supreme Court Justice, was announced last Saturday morning.
Entirely irrespective of your politics – red or blue, either side of the Atlantic – Ginsburg commanded respect. During a long and distinguished career, she was a titan in American politics and law. Posthumously, she continues to push barriers and chip away at the glass ceiling, as she becomes the first woman to ever receive the honour of lying in state in the Capitol’s National Statuary Hall on Friday.
She will be remembered for her brilliant legal mind and unprecedented leadership on women’s rights. Ginsburg became a multigenerational vanguard for women across America. Her story, told with wit and precision in the 2019 documentary ‘RBG’, is a lesson both for our sons, as well as our daughters.
A vacancy on the nation’s most important bench
The death of the longest-serving liberal Justice on the Supreme Court creates a vacancy that Donald Trump and the Republican Party are in a hurry to fill. Ginsburg’s death, 46 days before the election, is the second-shortest amount of time between an opening on the court and an election.
The President announced he will unveil his Supreme Court nominee in an event at the White House on Saturday. Democrats are crying foul. They have good reason.
In 2016, Barack Obama sought to nominate Merrick Garland to fill a vacant Supreme Court seat. Mitch McConnell, the Senate’s Majority Leader, and the most candid political operator on Capitol Hill, blocked a hearing on Mr Garland on the grounds that only eight months remained before the presidential election.
“The American people should have a voice in the selection their next Supreme Court Justice”, Senator McConnell said four years ago. How times have changed. Hypocrisy has become the watchword in one half of Washington.
One cannot understate the importance of Ginsburg’s successor on the highest court in the land. Supreme Court Justices are lifetime appointments meaning that Amy Coney Barrett, at age of 48, could feasibly serve on the bench for four decades.
Ginsburg’s replacement will therefore shape the court for a generation to come, putting in serious doubt seismic legal rulings on cases like Roe v. Wade (1973) which gave women the right to an abortion and Obergefell v. Hodges (2015) which paved the way for same sex marriage across the whole country. These are not just judicial precedents. They are decisions which have immediate and serious impacts on the fabric of American society.
Trump has already appointed two Justices – Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. Both replaced Justices appointed by Republican presidents, meaning their appointments merely maintained the existing balance of the Court. A conservative constitutional scholar ennobled by Trump would fundamentally shift the balance of the Court, ensuring a clear conservative majority of 6-3.
A shortlist of two
Speculation on Ginsburg’s replacement has centred thus far on two federal appeals court judges – Barrett, and Barbara Lagoa. The former is the favourite having met with the president at the White House on Monday, but the latter would represent a safer bet. The Senate confirmed Lagoa 80-15 last year, so she has previous support amongst many Senate Democrats.
The President wants a vote on his proposed nominee before the election, but that requires procedural support in the Senate. Senators Susan Collins and Lisa Murkowski oppose a vote before the election, which means that two more Republican defections would force the vote to be delayed until the lame-duck session of Congress.
Should Donald Trump lose the election, huge pressure would then build on Senate Republicans to defer to the incoming president.
Mitt Romney, who has made a habit of being an outspoken critic of the president in the Senate, has come out in favour of pushing a vote on the vacancy. His support had not been guaranteed, and has therefore given the President and McConnell a boost. That all but ensures a nominee put forward by the president will be confirmed – bar any major missteps from the nominee.
For Trump and his 2020 re-election team, the Supreme Court vacancy comes as an unexpected gift amid a fledgling campaign. For all the president’s warm words about Ginsburg, there is no hiding the naked political benefit of shifting the conversation away from Coronavirus – America has now passed the grim milestone of 200,000 deaths – and the subsequently ravaged US jobs market.
Instead, the political dynamic focuses on appointing a conservative judge to the Supreme Court. The President has tried to make judicial appointments a major plank of his election campaign. Pushing through a third Supreme Court Justice would imprint a major Trump stamp on the future of American society, long beyond a first or second term in the White House.