Following the death of liberal US Supreme Court justice Ruth Bader Ginsburg on 18 September, the court has been left with five conservative justices and three liberals, with Republican Party politicians now scrambling to ensure that a conservative justice can be appointed to replace Ginsburg before the US presidential elections in November.
Of the five conservatives on the court, John G Roberts leans closer to the political centre, allowing it to swing in either direction in its rulings and resulting in a more ideologically balanced court. US President Donald Trump, backed by the Republican-dominated Senate, has been quick to promise the immediate replacement of Ginsburg only 40 days away from the presidential elections, as a sixth conservative judge would effectively ensure a conservative court for decades to come. In a brief tweet on Tuesday, Trump announced that he will disclose his Supreme Court Nominee on Saturday.
A Supreme Court justice dying shortly before presidential elections is not unprecedented in the United States, with Antonin Scalia, a conservative, dying in February 2016, 11 months before former US president Barack Obama’s term ended.
Within hours of Scalia’s death, Republican Senator Mitch McConnell rejected the idea of the Senate voting on a new justice so close to the presidential elections, claiming that “the American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
It is ironic that the same senator has now stated that the Senate would be willing to vote on a new justice just over a month away from the presidential elections, the difference being that a conservative justice is most likely now going to be appointed.
Democratic Party presidential nominee Joe Biden has spoken out on the “hypocrisy” of McConnell and has been trying to appeal to the moral side of other Republican senators, saying that “I’m speaking to those Republicans out there, Senate Republicans, who know deep down what is right for the country and consistent with the constitution” in asking for the appointment to be delayed.
He made the case on behalf of the American people, saying that “the people of this nation are choosing their future right now, as they vote. To jam this nomination through the Senate is just an exercise in raw political power, and I don’t believe the people of this nation will stand for it.”
Trump has already stated that the next justice to be appointed to the court under his presidency will be a woman, and there is speculation that Amy Coney Barrett or Barbara Lagoa are being considered for the position.
Barrett is a Roman Catholic known for allowing her religious beliefs to influence her legal views. She is staunchly against the US abortion laws, making her a far cry from the justice she would be replacing, who was known for championing women’s right to choose.
Lagoa, in addition to also being anti-abortion, has aided businesses in challenging the minimum wage in Florida and has helped to make it harder for homeowners to fight foreclosure proceedings. There are concerns that she would continue to advance the interests of the wealthy were she to be appointed to the Supreme Court.
A Republican-dominated Supreme Court would threaten the Affordable Care Act, also known as Obamacare, which provides basic medical insurance for all Americans and that Trump has been trying to repeal.
With a 6-3 advantage on the court, or 5-4 if Roberts were to swing the other way, the act could be successfully challenged in the court and subsequently repealed, causing 20 million Americans to lose their health coverage. The Roe v. Wade ruling that made abortion legal in the US as a result of a then more progressive Supreme Court could then be dismantled, along with gun-control laws and restrictions.
The Supreme Court is a vital part of the separation of powers in the US federal government, and a more partisan Court would be less likely to limit the powers of the executive and legislative branches of the government, especially if they are Republican-controlled, potentially allowing them to abuse their power.
A more well-balanced court, on the other hand, could be relied upon to interpret the constitution more fairly and to act on behalf of the American people as a whole.
Some Republican Party senators, among them Lisa Murkowski, Susan Collins, and Mitt Romney, have said they will vote against any new appointment to the court before the elections, possibly removing the Republican majority in the Senate and making it more difficult for Trump to obtain the numbers he would need to ensure ratification.
In the event that another Republican senator joins the dissenters, potentially voting against a Trump appointee to the court, the nomination would be rejected and appointing a new Justice will have to wait till after the elections; if not, then it would be a tie, and Vice-President Mike Pence would be called upon to cast his vote on the new appointment.
*A version of this article appears in print in the 24 September, 2020 edition of Al-Ahram Weekly