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Opinion Here’s who gets the Supreme Court seat — and how many there will be next year

Ruth Marcus here for Round 70. Glad to be breaking into the big leagues of the Power Rankings for a triple-question SCOTUS edition, heartbroken that the reason is the death of Justice Ruth Bader Ginsburg.

The Commentary

Any suspense over whether President Trump will be able to fill Ginsburg’s seat has been pretty much wiped away by the hypocritical response of nearly every Senate Republican to the tantalizing prospect of filling a vacancy, despite the imminence of Election Day.

So whom will Trump tap for his — gulp — third nominee to the high court? My money is strongly on Amy Coney Barrett of the Midwest’s U.S. Court of Appeals for the 7th Circuit. Barrett was, of course, on Trump’s list the last time around, and he ultimately said he was “saving” her for a then-notional Ginsburg vacancy. Now, Barrett has two additional years on the bench and a record that should assure Republicans she will be a reliable sixth conservative on the high court. Barrett not only has two votes for abortion restrictions under her belt but also has ruled in favor of broad Second Amendment rights.

Trump might be tempted, for obvious electoral reasons, to turn to the 11th Circuit’s Barbara Lagoa, a Cuban American from Florida. But going with Lagoa, given her relatively scant record, would be far riskier in terms of reliable jurisprudence than choosing Barrett. Supporters who have watched the GOP fritter away other court chances on supposed conservatives who turned out to be less than dependable could revolt over Lagoa.

But speaking of politics, whom will the vacancy help? On the presidential level, it’s Joe Biden over Trump. That’s in part because the Trump base is already as energized as it can be; there just aren’t many more voters to rouse. Meanwhile, the hasty replacement of an icon such as Ginsburg with a (perhaps extremely) conservative jurist seems likely to motivate voters on Biden’s behalf, especially some previously lukewarm young progressives.

The Senate is a mixed bag but probably shakes out a bit better for Republicans. Susan Collins appeared headed for a loss before Ginsburg’s death; her opposition to filling the seat was never going to be enough to save her own. The calculus was the opposite for Cory Gardner in Colorado — he couldn’t afford to buck Trump — but his fate was probably similarly sealed. On the other hand, incumbents in slightly redder states such as Thom Tillis in North Carolina and Joni Ernst in Iowa could benefit from a base-rallying nomination.

Which leads into the question of how many justices will be on the court a year from now: I’m sticking at nine. To get to a number above that (and thanks for that fancy math, David Byler), you have to assume three things: a Biden win, a Democratic Senate and enough votes there to withstand a few defections in the push to expand — derogatory term, “pack” — the court. So, nine … with a 30 percent chance of 11.

— Ruth Marcus

The Rankings

This week, our pundits were asked the same three questions tackled above. Read on to see how they answered — and don’t forget to click on the yellow highlighted text to see the Ranking Committee’s annotations.

Who gets the seat?

Potential Nominee
Amy Coney Barrett
Barbara Lagoa
Allison Jones Rushing

Who gets the biggest election boost?


How many justices next year?

Number of SCOTUS Seats
… 9.7

Previous round: Round 69 | Here’s who Biden should pick for a dream Cabinet

From the Annotations

Lagoa offers a pandering opportunity Trump could hardly pass up — if she had been vetted for the job. But things need to move fast if Mitch McConnell is going to get to pack his court, and Barrett is reviewed and ready to be rocketed into the fray.
— Molly Roberts, on Amy Coney Barrett as the pick
I have no idea. And they have no idea, either.
— Karen Tumulty, on which party benefits electorally
I think there’s about a 20 percent chance Trump wins. There’s a 40 to 50 percent chance Biden wins and keeps the court at nine. And there’s a 30 to 40 percent chance he packs it to 11. So, doing some simple expected value math, we get .2(9) + .45(9) + .35(11) = 9.7
— David Byler, on *9.7* SCOTUS seats next year

Agree? Disagree? Share your thoughts in the comments. We’ll see you for the next ranking. Until then, don’t blink, or the race might turn upside down again.

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Read more on 2020:

Round 69 | Here’s who Biden should pick for a dream Cabinet

David Byler: Trump’s Supreme Court pick would be a risk — for himself and the country

Jennifer Rubin: GOP senators who play with fire with the Supreme Court will get scorched

Megan McArdle: The tit-for-tat Supreme Court game is about to reach a catastrophic conclusion