As if the United States of America did not have enough on its plate, the death of liberal Supreme Court Justice Ruth Bader Ginsburg adds another major twist to the 2020 election and the landscape of American politics.
Both Republicans and Democrats have made the issue of Supreme Court nominations a selling point for their political project. The Republican Party has had greater recent success with both the stalling of President Obama’s nomination of Merrick Garland and President Trump’s nomination of two conservative judges within the first two years of his presidency.
As a result, the Supreme Court turned 5-4 in favor of the Republicans, and that margin is threatening to grow to 6-3 if the Republicans are able to nominate Ginsberg’s replacement.
Despite the Republicans avid arguments in 2016 that it was too close to the election for Obama to nominate Garland, unsurprisingly Senate Majority Leader Mitch McConnell wasted no time in releasing a statement on Ginsberg’s passing — ending with a clear agenda, “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
With the stakes set and RBG’s death rocking the American political establishment, pundits and commentators have looked at the impact of her death on both the future of the Supreme Court, as well as this year’s presidential and congressional elections. In a year of massive political turmoil, the passing of Ginsberg – a judge who achieved an iconic status among certain liberal circles – has galvanized both parties.
But will that change the results?
1. Republicans Aren’t Tired of Winning. Are Democrats Tired of Losing?
While Democrats have tried to paint McConnell and company as hypocrites, Republicans have shown immunity to these arguments shrugging off claims and using brute political force. Republican Senator Mitt Romney, an off-and-on critic of the president, showed party solidarity and became the 51st Republican senator to say they will vote in approval of Trump’s nominee.
Unlike Democrats, American conservatives can rely on an immensely powerful network of right-leaning judges, namely the Federalist Society. All five current Supreme Court justices have ties to the Federalist Society, and Trump has thus far deferred to their political project rather than nominate justices out of left field.
Liberals do not have a Federalist Society equivalent but the Democratic Party has long used the Supreme Court to rile up its base. From Kerry in 2004 to Hillary Clinton in 2016, Republican nominations to the Supreme Court were pitched as existential threats during election years.
With Mitt Romney’s approval of a vote, Democrats are flailing for a response with little procedural pushback on the table, considering Republicans have the simple majority they need. Some have proposed drastic threats including D.C. and Puerto Rico statehood and court packing.
Conservative media has made a heyday as prominent liberals have called for widespread civil unrest if the Republicans push forward with a vote. These are largely false threats considering the source is mostly blue-check liberal pundits, but it does beg the question: How will Democrats respond? And because many of their most loyal supporters believe losing the Supreme Court is an existential threat to their lives, will the Democratic establishment be compelled to push further than they would normally choose?
2. A Mixed Response
With the GOP clearly setting out their agenda and Democratic voters in a frenzy, the ball is in the Democrats court and there are signs that prominent members are in disagreement about how to proceed.
Speaker of the House Nancy Pelosi refused to rule out another impeachment of President Trump if Biden wins the election and President Trump attempts to push through his nomination in the lame-duck session.
To show Democratic solidarity, Senate Minority Leader Chuck Schumer and rising star Representative Alexandria Ocasio-Cortez held a joint press conference on Ginsberg’s passing. Ocasio Cortez said, “We must use every tool at our disposal” to ensure the vacancy would be filled by the next president. Schumer also affirmed that “nothing is off the table.”
While the Democrats appeared to be unified across the political factions within their party, resulting statements from senior figures in the Democratic Party struck a much different tone. A day after threatening impeachment, Pelosi said she would not leverage a government shutdown to ensure the winner of the 2020 presidential election would get to pick the next Supreme Court justice. On Tuesday, the House passed a spending bill to avoid a government shutdown, taking a major weapon out of their arsenal.
Representative Dianne Feinstein also came out against abolishing the filibuster and packing the court as a threat if Trump does go through with another nomination. Adding more Supreme Court Justices is viewed by some Democrats as a countermeasure to a 6-3 Republican court if Biden wins with both houses of Congress in Democratic control.
The Democratic presidential nominee, Former Vice President Joe Biden has also struck a more bipartisan tone, appealed to several Republican senators who might vote against a Trump nominee. Biden asked these senators to “follow your conscience”; however, many Democratic supporters worry about the Republicans calculated ruthlessness as seen in the blocking of Obama’s appointment.
There are already reports that Trump will name his nominee by the end of the week, and is pressuring the Senate to hear the nominee before the election.
In an interview with George Stephanopoulos, Pelosi emphasized the importance of Ginsberg’s seat, yet made a pitch for voters to turn out for the November elections rather than focus on how a Trump nomination can be halted.
3. Immediate Impact
Beyond the generational impact of a lifelong appointment to the Supreme Court, Ginsberg’s seat is now vacant, looming large over the general election. The Supreme Court is a massive issue for voters loyal to the Democratic Party. ActBlue, the Democrats fundraising site, boasted a $100 million haul over the weekend after news broke of Ginsberg dying on Friday night.
There is additional reason for concern in the Biden camp in recent polls. The Democratic nominee still holds a sizable national lead but it has decreased from a peak of over 9% (one month ago) to 6.7% (today), according to FiveThirtyEight.
Biden’s playbook thus far has been to cater to a desire to return to some form of normalcy after a pandemic-filled year, and he has charted similar territory in regards to Ginsberg’s now-vacant seat. With still-healthy leads in other key states such as Wisconsin and Michigan, Biden’s team may choose not to expose themselves too much in fear of losing moderate voters.
However, the legitimacy of this year’s election has already been called into question by both political parties. Trump has repeatedly questioned the validity of postal voting, and Democrats have raised concerns about Trump withholding funds from the US Postal Service in an election that will see historic postal voting.
Needless to say, this election will face legal contestation perhaps from both sides as the result is likely to be unclear after election night since many states will not start counting the massive number of postal votes until voting has stopped.
4. Could the Courts Decide the Winner?
The unprecedented nature of a presidential election during a pandemic has worried many commentators and political insiders. Democratic think tanks have “war gamed” different election scenarios, including one where California, Oregon, and Washington would threaten to secede from the Union if Trump refused to leave office.
Considering Trump’s alleged widespread voter fraud after he won the 2016 presidential election, it stands to reason he will make similar claims in the wake of the 2020 election.
A presidency decided by the courts also has recent precedence. Just 20 years ago, the Supreme Court vacated Florida’s Supreme Court’s decision to allow for a recount in four counties and later ruled against a recount, ending Gore’s chances in Florida and handing the election to George W. Bush.
Republicans already hold a majority on the Supreme Court, and if similar legal proceedings over election results take place in the wake of November, a Republican-controlled court would be more likely to hear a case involving a left-leaning state Supreme Court. For example, one swing state, Pennsylvania, has a 5-2 Democratic majority.
5. And the Votes?
The 2000 elections saw more than just hanging chads and Supreme Court intervention, it also had a dose of politically-motivated unrest.
The Brooks Brothers Riots, when Republican operatives disrupted recounts in Florida, have become a topic of discussion as parallels could be seen in the 2020 postal vote count.
Roger Stone, the organizer of the Brooks Brothers Riots, said Trump should declare “martial law” if he loses the election. Stone was in Nevada while Trump held campaign events when he made the remarks on Alex Jones’s show.
Stone continued, “The ballots in Nevada on election night should be seized by federal marshals and taken from the state. They are completely corrupted. No votes should be counted from the state of Nevada if that turns out to be the provable case. Send federal marshals to the Clark county board of elections, Mr. President!”
In a media landscape where misinformation spreads at hyper-speed, it’s hard to imagine an Election Day that goes off without a hitch.
Trump supporters have already gathered at early voting polling locations in Virginia and disrupted the vote. Election officials had to open an area indoors for voters to wait away from the Trump-supporting crowd.
Uncertainty was already in the air heading into the election, and many disrupting factors were set in motion long before Ruth Bader Ginsberg passed away. Her death undoubtedly adds another factor of uncertainty into the mix. How hard will the Republicans push and how hard will the Democrats push back? What happens in the event of a legally contested election à la 2020?
So far Republicans have shown a willingness to push quite far, while Biden has opted for a more magnanimous route. The result looks likely to be a 6-3 Republican Supreme Court, and a Democratic party base that is either galvanized or weary from repeated defeats on the Supreme Court front. If polling and conventional wisdom are to be believed, the Democrats may still win control of both the White House and Congress.
In this scenario, the growing fissures within the Democratic Party are likely to grow as more left-wing members of Congress push for further radical reforms.
Of course, the election could go very differently with Biden trending downwards in some polls.
Either way, the Democratic Party seems headed to a collision course between factions within its party. The different “war game” potentialities will greatly impact which faction comes out on top and what possibilities exist for political movements outside of the two main American political parties.
Via Unsplash by Claire Anderson.