Ruth Bader Ginsburg’s death marks the passing of a liberal icon on the US Supreme Court, the loss of a jurist heralded by the left in the US for her passionate advocacy of women’s rights, civil liberties and the rule of law.
Memorials and tributes to her, however, threaten to be overshadowed by the political firestorm that her death – and the resulting vacancy on the highest court in the US – will set off just 46 days before the presidential election.
Here’s what you need to know about what might happen next and why the stakes are so high.
Will Trump nominate a replacement before the election?
Donald Trump could now have the opportunity to make a third lifetime appointment to the nine-justice Supreme Court, a remarkable chance to leave a lasting imprint on American law and politics in only his first term in office.
It appears certain the president will try – either before the November’s election or after. And, if the Republicans lose, a confirmation could take place during a Senate “lame duck” session later in the year, before a new Congress and president take office in January.
Any attempt to fill the seat this year will prompt cries of hypocrisy from Democrats. They remember Republicans – including Senate Majority Leader Mitch McConnell – blocking Democratic President Barack Obama from filling a 2016 Supreme Court vacancy for nearly a year, until Trump could name a replacement in 2017.
At the time, Republicans said it was important for voters to express their opinion at the polls before a new justice was confirmed. McConnell, and some other Republicans, have since said that such a rule shouldn’t apply when one party controls both the presidency and the Senate – which, conveniently, is the situation at the moment.
Would a Trump nominee get confirmed?
It could come down to a question of maths – and timing.
Republicans have 53 Senate seats, and need 50 votes to confirm a nominee. Already two Republicans – Susan Collins of Maine and Lisa Murkowski of Alaska – have said they support allowing Joe Biden to name the next justice if he were to win in November.
The pressure – from both sides – on Republican senators in tight re-election campaigns, nervous of angering moderate constituents or displeasing their base, will be extreme.
Republicans could avoid some of this pressure by waiting until after the election. Given that senators want to campaign, it would be difficult to schedule hearings and a vote before then, anyway. If they wait and Biden and the Democrats win, however, Democratic fury will be even greater, as they accuse Republicans of directly subverting the will of the people.
Why does it matter who is on the Supreme Court?
The situation is politically fraught not just because of the timing of Ginsburg’s death, but also because the legal stakes are so enormously high.
If Trump does name a replacement, a likely candidate is circuit court judge Amy Coney Barrett, who was also under consideration by the president for the two previous vacancies. If she, or someone like her, filled Ginsburg’s seat, it would move the ideological balance of the court sharply to the right.
Narrowly decided court rulings on abortion rights, immigration and presidential power that liberals celebrated earlier this year would instead be conservative victories.
The outcome for upcoming cases on healthcare and same-sex adoptions, as well as possible issues like gun control, voting rights, criminal procedure and religious freedom could be very different with a solid 6-3 conservative majority on the court.
Will it help Trump or Biden in the presidential election?
Up until now, the presidential race between Trump and Biden has been remarkably stable, given the economic and social upheaval that has resulted from the coronavirus pandemic and protests over police brutality and institutional racism.
The Democrat has enjoyed a modest but comfortable lead over the president in national polls and those in many key swing states, suggesting that many Americans had settled on how they would vote.
Ginsburg’s death, however, injects a new level of uncertainty into the race.
The 2016 Supreme Court vacancy helped solidify conservative support behind Trump – particularly evangelicals who saw an opportunity to roll back abortion rights. Surveys suggested more voters on the right turned out because of the Supreme Court issue than liberals did, giving Trump what could have been a critical advantage in a narrowly decided election.
There is the possibility that a vacancy on election day in 2020 could have a similar effect. Or, if Republicans fill the seat by then, it could remind those on the right why they should stick with Trump despite all the turmoil, self-created and otherwise.
On the other hand, Democrats, who were so devoted to Ruth Bader Ginsburg that they bought “RBG” action figures, watched films and documentaries about her and fretted over each new health crisis, could be even more motivated to vote to preserve her legacy. If Ginsburg’s death ticks up enthusiasm among younger or less reliable voters, it could be Democrats who reap the electoral rewards.
It’s a thicket of unknowns, but in a race that was tilting toward Biden, any change in the existing dynamics is good news for Trump.
How might Democrats retaliate?
One thing is clear, however, and it’s that rage will consume the left if Trump succeeds in replacing Ginsburg – particularly if Biden and the Democrats prevail in November.
Already there’s talk of political retaliation if Republicans push through their nominee. A few of the more obvious moves, once considered extreme, are already being mentioned – ending of the Senate legislative filibuster that allows a minority in the chamber to thwart the will of the majority; adding new seats to the Supreme Court; and offering statehood (and congressional representation) to the District of Columbia and Puerto Rico, among them.
2020 has been a trying year for America – politically, socially and culturally. One way or another, there is now a Supreme Court battle in the works, one that is sure to be as vicious and hard-fought as any in modern memory.
If the fabric of national cohesion hasn’t been tested already, it will be.