Just when you though this year couldn’t get any more wild, the passing of justice Ruth Bader Ginsburg has added a new layer of turmoil to 2020. There are tons of questions and information floating around about the implications of this. I’ll walk you through what you need to know. We’ll take a look at the history of the Supreme Court (briefly), what is actually possible in terms of an appointment, the political parties’ potential maneuvers, and the overall implications for the upcoming presidential election.
The Supreme Court’s Makeup
First, let’s take quick a step back and examine the composition of the Supreme Court prior to RBG’s passing. The Supreme Court had 9 justices – a number that hasn’t changed in over 150 years. Notably, the amount of justices isn’t fixed – there have been more and less justices at different times historically. Congress itself determines this quantity. This has become an important point of contention that I’ll touch on later.
Of the previous 9, there was a fairly even split amongst political ideologies – four liberal, four conservative – with Chief Justice John Roberts fairly middle-of-the-road. With RBG’s passing, Republicans are eager to fill the spot with another conservative, tilting the 9-member balance in their favor.
Can a New Nominee Be Appointed?
Due to a previous rule change by Mitch McConnell, only a simple majority of the Senate is required to confirm and appoint a Supreme Court justice nominated by the President. At present, Republicans hold a 53-47 majority in the Senate. For a nominee to fail to be confirmed, 4 or more Republican senators would be required to vote against confirmation. Only 2 Republican senators – Susan Collins of Maine and Lisa Murkowski of Alaska – have indicated they are “No” votes, preferring instead to wait for a Supreme Court nomination by whomever wins the election in November. A potential holdout – Mitt Romney – recently indicated he would be open to a “Yes” on the nomination. Thus, it would appear the Senate has the votes required to confirm a nominee.
The average time from nomination to appointment is 68 days, according to the Congressional Research Service, with the shortest confirmation time in recent history at just 19 days (John Paul Stevens in 1975). Regardless of election outcome, the President and existing Senate terms do not expire until the end of the year. They have the constitutional authority to nominate and confirm a Supreme Court justice throughout this period. Even in a lame duck session, the Senate could complete the confirmation process inside of this year.
How Might Confirmation Hearings Shape Voter Decisions?
It’s no secret that Trump isn’t particularly popular among female voters. Trump’s favorability with women has been hovering around 35% for most of his presidency. Notably, Trump has indicated that he intends to nominate a female to fill the Supreme Court vacancy. Confirmation hearings may in fact be a chance for Trump and the Republicans to win over some of the female vote, if the confirmation hearings go anything like they did for Brett Kavanaugh. Surely you’ll recall Democrats pulling out all the stops in an attempt to humiliate and disqualify Kavanaugh. Democrats were seemingly willing to go to any length, reasonable or not, to preclude his confirmation. Should the Democrats show they are willing to go to any length to block any conservative nominee – in this case, even an upstanding female nominee – it may disillusion some of the female electorate and cause them to abandon the Democratic party in favor of Trump.
Further, the Democrats have hinted that they might chose to impeach Trump (again) to block him and the Senate from fulfilling their constitutionally prescribed duties of nominating and confirming a Supreme Court justice. Between potentially attacking a female nominee and using questionable tactics to impede the process, Democrats would be wise to weigh the impact their actions may have on the perceptions of the voting public. An ostensibly sham impeachment may likewise serve to push otherwise Democratic voters into the Republican camp.
Could a Conservative-Majority Supreme Court Impact the Election?
How Americans actually cast their votes this year has become a highly contentious issue. There have been talks of universal mail-in ballots being sent, extending deadlines to receive ballots to long after election day, accepting ballots without proper postmarks – and the list goes on. With such disagreement about how to properly accomplish the vote, it seems likely that there will be judicial challenges to the results.
This brings us back to the 2000 election of Gore v. Bush. In that election, the Supreme Court ultimately settled a dispute in the state of Florida around how to resolve some of the state’s voting and recount issues – which itself decided the election. If there are issues with this election – as there almost undoubtedly will be – a conservative leaning Supreme Court may incrementally favor Republicans in the resolution of issues. However, having a full arsenal of Supreme Court justices – 9 – may well also be favorable to avoid stalemates on any issues. It could conceivably be worse to see the Supreme Court unable to overturn any state issues due to being deadlocked at 4-4, meaning that the country would see a mess of potentially disparate rulings as states tackle their own issues individually around the country without possible resolution at the Supreme Court level.
How Have the Democrats Responded?
Democrats have vowed to use “every arrow in their quiver” to combat a new appointment by Trump. This seems to at least include some of the potential tactics described above – both procedural (impeachment) and personal (attacks on the nominee). However, if these tactics fail to prevent a confirmation, the Democrats have hinted at other tools that will be at their disposal if they win Congress and the White House in the election.
Among these tools is one fervently advocated by Kamala Harris – “packing the court.” Remember before where I mentioned that the number of justices on the Supreme Court isn’t fixed? Well, here’s where this can become an issue. If the Democrats sweep in the election, they can conceivably increase the number of justices on the Supreme Court to instead represent a liberal majority – add, say, 3 liberal justices, resulting in a 12 member Supreme Court (6 liberal, 5 conservative, and Chief Justice John Roberts). Overtly politicizing the Supreme Court through legislating a larger size is a slippery slope, though. No doubt the Republicans could (and likely would) do the same when they had the opportunity. This would ultimately result in an endless series of one-upsmanship that may well diminish the quality and integrity of the Supreme Court. Biden has smartly recognized the pitfall in this path, publicly arguing against “packing the court.” However, he seems to be more open to the idea now, and surely Kamala would move in that direction were Biden to become sufficiently mentally diminished that he somehow is unable to fulfill his presidential role.
What are the Implications for Voter Turnout?
This seems like a bit of a toss-up.
You could easily see a bigger conservative turnout to help maintain a coveted conservative Supreme Court majority and prevent any court packing by the Democrats. For example, a Gallup poll in 2019 showed that a majority of women are pro-life (51%) over pro-choice (43%) – some of this cohort could show up to vote in favor of support for the possibility of a pro-life SC.
At the same time, liberal supporters could turn out in droves in an attempt to take back Congress in full and the White House, enabling them to pack the Supreme Court and remake its balance of power.
Surely, the tactics each political party uses in the days preceding the election will also have some influence. Does an impeachment change voter preferences? What about the lambasting of a perfectly good female Supreme Court candidate? Are voters upset by the fact that the current administration won’t let the will of the people in the upcoming election guide the decision as to who should be nominated for the Supreme Court seat?
If anything, it seems like RBG’s death has simply added another layer of uncertainty to what is already a highly volatile year. It’s not entirely clear how this will play out, particularly as it pertains to motivating voters. Unfortunately, it’s likely that this will distract Congress and only further prevent them from passing much needed additional fiscal stimulus, serving up more uncertainty and potential instability.
It would seem that solutions exist that might help avoid the types of problems we are experiencing now. Supreme Court term limits, for example, could help resolve the random rotation of justices tied only to their deaths or retirement. In addition, permanently fixing the number of justices could prevent political maneuvers like attempts to pack the court.
In the meantime, it will be interesting to see how this plays out as we continue to live though uniquely unprecedented circumstances.