The death of Supreme Court Justice Ruth Bader Ginsburg came less than two months before an already divisive presidential election. The nation barely had time to mourn before the political implications were discussed on a national stage.
Justice Ginsburg’s proposed replacement is Amy Coney Barrett, a federal appellate judge appointed by President Trump in 2017. She was on the shortlist for a spot on the Supreme Court in 2018, which ended up going to Justice Brett Kavanaugh.
Barrett’s nomination, like Kavanaugh’s, has been riddled with controversy. Unlike 2018, her background takes a backseat to the current political climate and pandemic. Despite this, the Senate Judiciary Committee will begin confirmation hearings on Oct. 12.
A Problematic Precedent
When Supreme Court Justice Antonin Scalia passed away in February 2016, President Obama appointed Judge Merrick Garland as his replacement. Although it was the president’s constitutional responsibility to appoint a new justice, Senate Republicans blocked the nominee until President Trump’s inauguration.
The United States was short a Supreme Court Justice for over a year until the Senate confirmed Trump’s nominee Neil Gorsuch. Senate Majority Leader Mitch McConnell argued that a nomination shouldn’t come so close to an election, as voters should have a say.
McConnell said in 2016: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’”
In 2020, McConnell seems to have flipped his stance. In an official statement on the passing of Ginsburg, he said that Trump’s nominee will be voted on by the U.S. Senate. He argued that this situation is different from 2016.
“Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” McConnell said.
In reality, there’s nothing in the U.S. Constitution that prevents “an opposite-party president” from appointing a nominee in an election year. The decision was made because Republicans had the political power to do it.
“Everybody knew that neither side, had the shoe been on the other foot, would have filled it,” McConnell said on Meet the Press in 2017.
On the other hand, there’s nothing in the constitution that prevents the Senate from rushing through the nomination process before the election, although it would be unprecedented.
The seat became vacant only 46 days before the election, with the average time between vacancy and confirmation to be about 68 days since 1975. The last confirmation to take less than 46 days was Justice Ginsburg’s, who was confirmed by President Clinton 42 days after Justice Byron White retired.
Barrett would need 50 votes to be confirmed. The Republicans hold 53 seats in the Senate, which means they can afford up to three defections and still win the vote. But COVID-19, of course, complicates things.
Since President Trump announced he had tested positive for COVID-19, several other high-ranking Republicans have announced positive tests. This includes senators Ron Johnson, Thom Tillis and Mike Lee, with the latter two serving on the Senate Judiciary Committee.
Several of those who tested positive were present at Amy Coney Barrett’s nomination ceremony on Sept. 26, including the president and first lady. Barrett herself was pictured in close contact with many of them.
Barrett had contracted COVID-19 and recovered earlier this summer, and has tested negative since the celebration.
In an official statement, Senate Democratic Leader Chuck Schumer criticized the decision to hold the confirmation hearings so soon
“The decision to recess the Senate for two weeks after at least three Republican Senators have tested positive for COVID-19 makes clear that the Senate cannot proceed with business as usual as the virus continues to run rampant,” Schumer said. “If it’s too dangerous to have the Senate in session it is also too dangerous for committee hearings to continue.”
On Oct. 6, the president announced that he will not negotiate with Democrats on a stimulus bill, instead urging the Senate to focus on confirming his nominee.
An ABC News/Ipsos poll found in interviews conducted on the Friday and Saturday after the president’s positive test that 72% of Americans don’t think Trump has taken COVID-19 seriously enough. Only 35% approve of his handling of the pandemic.
The decision to prioritize the Supreme Court over COVID-19 relief will likely not help him improve those numbers. It also doesn’t seem that it will help his chances at re-election.
Incumbent Mike Pence and Sen. Kamala Harris both stressed the impact that the election has on the future of the Supreme Court during the Vice Presidential debate on Wednesday.
“Joe and I are very clear: The American people are voting right now, and it should be their decision about who will serve on this most important body for a lifetime,” Harris said.
Vice President Pence said: “I gotta tell you, people across this country, if you cherish the Supreme Court, if you cherish the separation of powers, you need to reject the Biden-Harris ticket.”