Ruth Bader Ginsberg’s death sets up an even bloodier battle for this fall

Image by Victoria Pickering

Losing the icon of women’s rights is painful. Losing her amid so much death and economic loss from the pandemic; violence, protests, fires and hurricanes; and a deeply divisive presidential campaign is just beyond the limits of grief a country should have to bear. But it gets worse, U.S. Supreme Court Justice Ruth Bader Ginsberg’s death sets up brutal fight in the coming months over who should pick her replacement.

Shortly before he learned of her death, Trump warned his supporters at a rally that “the next president will get one, two, three, four Supreme Court justices.” Changing the make-up of the Supreme Court in order to overturn the Roe vs. Wade ruling that legalized abortion is the holy grail for conservatives, especially, evangelicals.

Trump came to understand this after winning the nomination in 2016 but finding that his polling was lagging. “I had no idea how important Supreme Court judges were to a voter. No idea,” Trump recalled, “I was getting really hurt, because they were afraid I was going to pick maybe liberal judges.” He remedied this by releasing a list of conservative judges that he would consider to replace the recently deceased Justice Antonin Scalia if elected.

Scalia died in February of 2016, leaving a vacancy for Obama to fill. But Republican Senate Leader Mitch McConnell refused to bring his choice of Merrick Garland to a vote, arguing that “the American people should have a voice in the selection of their next Supreme Court Justice.” This set a dangerous and slippery precedent, one that infuriated Democrats.

But remember, everyone thought that Hillary Clinton would win the election and then nominate someone further to the left. That didn’t happen. Trump won and quickly put the very conservative Neil Gorsuch on the court. It’s hard to exaggerate the rage that this brings out in Democratic voters: total disgust both with McConnell’s disregard for the constitution and with their own party for not taking that battle more seriously. So, to mourn Ginsberg just 6 weeks away from the election and for Trump to be in a position to replace her with another conservative idealogue is like lighting a matching a room full of hydrogen gas.

Ginsberg was well aware what her own death would mean and her dying wish “is that I will not be replaced until a new president is installed.” This now becomes a rallying cry for Democrats as Trump vows to move quickly to replace her and McConnell shamelessly promises to bring that nomination to a vote.

The Republicans have a narrow 53–47 majority in the Senate and won’t be able to confirm a nominee if four Republicans are unable to stomach the hypocrisy. So far, Republican Senators Lisa Murkowski of Alaska and Susan Collins of Maine have stated that they do not support confirming a supreme court justice before the election. Some hopes were pinned on Senators Charles Grassley of Iowa and Senator Mitt Romney of Utah, but they’ve indicated they will vote to fill the seat and most other Republicans have joined them.

While many conservatives are urging Trump to move quickly on a nominee, and he’s already said it will likely be a woman, there is an argument for holding off until after November 3rd. Some believe that once it’s done, Trump would no longer have a carrot to dangle in front of his most fervent supporters to get them to go vote. With his polling numbers already low, any loss of voters poses a problem for Trump, but then, the right does tend to vote.

Democrats are already framing this as a battle over healthcare and the pandemic, accusing Republicans of rushing the process in order to have a justice in place to hear a case seeking to invalidate the Affordable Care Act (Obamacare), wiping out healthcare for 23 million Americans. The court of public opinion will also weigh in and since the left is already in the mood for protests, no doubt there will more.

If the nomination doesn’t go through before November 3 and Trump wins, then it’s game over. If Joe Biden wins, Republicans might still try to get a nomination through in the lame duck session, but they would be tempting fate as the party faces a serious rebuilding after the Trump years. If Democrats win the White House and the Senate, and Republicans push the nomination through before the inauguration, then the final solution might be expanding the Supreme Court by 2 to 4 justices. This will bring about howls from Republicans but if they lose that badly, then they won’t have a whole lot of punch left to give. Either way, this turns the election on its head and this fall just got bloodier.

This op-ed was published in Spanish in El Pais.

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