Senate Majority Leader Mitch McConnell (R-Ky.) announced at 8:51 p.m. that “President Trump’s nominee will receive a vote on the floor.” That was almost the exact amount of time it took McConnell to announce after Justice Antonin Scalia died in February 2016 that whomever President Barack Obama nominated would not receive a vote.
Trump called McConnell on his flight back to Washington from a rally in Minnesota to say he likes Judge Amy Coney Barrett of the Court of Appeals for the 7th Circuit and Barbara Lagoa of the 11th Circuit, two people briefed on the discussion tell Seung Min Kim.
More than a thousand people spontaneously gathered outside the Supreme Court by 9:30 p.m. Many brought lilies and tulips to place on the steps. The flag was lowered to half-staff, and the crowd began to sing “This Land is our Land.”
Adrienne Jacobs, 30, raced over on an electric scooter as soon as she heard the news. She clutched a friend, who sobbed into her shoulder so hard that her glasses fogged up. “I live alone,” she told one of my colleagues, “and I didn’t want to be alone.”
Just like this week’s crisp autumn air in Washington, the October Surprise of the 2020 election came two weeks before October. Politics is always about power, but the bare-knuckled brawl we are about to witness will be American politics at its rawest. As the nation mourns and partisans gear up for combat, here are nine implications of this seismic news:
1) Trump will probably nominate a woman in the next few days.
Facing historically large gender gaps in public and private polls, it seems unfathomable that Trump would put up a man to replace a feminist pioneer like Ginsburg, especially so close to the election and after his previous pick for the high court, Brett Kavanaugh, was accused of sexual assault during the confirmation process.
Barrett, only 48, was confirmed to her post in late 2017 on an almost party-line vote. The only three Democrats who defected were Sens. Joe Manchin III (W.Va.), Tim Kaine (Va.) and Joe Donnelly (Ind.), who was defeated the next year. As a devout and outspoken Roman Catholic (she has seven children), she has left little doubt in her public comments and jurisprudence about her deeply held hostility to reproductive rights. “Your legal career is but a means to an end, and … that end is building the kingdom of God,” Barrett said in a 2006 speech to graduates of Notre Dame, where she attended law school.
Politico reports that Barrett is “considered the leading contender,” citing four people familiar with the matter: “She has strong support inside the White House Counsel’s office, which had already vetted her paperwork when she was nominated for the appellate court.”
Bloomberg News said that “Barrett swiftly emerged as an early front-runner.”
Axios reported in March 2019 that Trump told several confidants in multiple conversations that he would nominate Barrett for Ginsburg’s seat if he got the chance. “I'm saving her for Ginsburg,” Trump purportedly said.
The Fix’s Aaron Blake looks at four other women Trump put on the federal bench who he has identified as potential SCOTUS picks: Britt Grant, 42, who clerked for Kavanaugh; Lagoa, 52, was the first Hispanic woman to serve on the Florida Supreme Court; Joan Larsen, 51, a former Michigan Supreme Court justice; and Allison Eid, 55, who replaced Neil Gorsuch on the 10th Circuit and once clerked for Justice Clarence Thomas.
The president tweeted Saturday that he will move “without delay” to fill the vacancy:
Democratic presidential nominee Joe Biden has promised to nominate the first African American woman to the Supreme Court if he is elected, but he has backed away from comments earlier this year that he would release a list of potential justices. “The voters should pick the president, and the president should pick the justice for the Senate to consider,” Biden told reporters on Friday night.
2) A Senate vote on Trump’s nominee seems most likely to occur during the lame-duck session, after the election.
McConnell gave no timeline in his public statement for when Trump’s nominee would get a vote, just that there will be a vote. Republicans control the Senate 53 to 47 votes. Vice President Pence can break ties. In a private email last night, McConnell urged his members to “keep your powder dry.”
“Over the coming days, we are all going to come under tremendous pressure from the press to announce how we will handle the coming nomination,” he wrote. “For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry. This is not the time to prematurely lock yourselves into a position you may later regret.”
“At least two GOP senators indicated in interviews before Ginsburg’s death that they would not support filling a Supreme Court vacancy so close to Election Day,” Kim reports. “Sen. Susan Collins (R-Maine), a perennial swing vote on contentious confirmation fights, told the New York Times earlier this month that she would not support voting to confirm a new justice in October, saying, ‘I think that’s too close, I really do.’ … And in an interview with Alaska Public Media that occurred Friday ahead of the news of Ginsburg’s death, Sen. Lisa Murkowski (R-Alaska) — another consistent swing vote — said she would not vote to confirm a justice before the election, either. … Aides to both women declined to confirm those remarks after the news of Ginsburg’s death.”
A spokeswoman for Sen. Mitt Romney (R-Utah), the 2012 GOP presidential nominee who voted to find Trump guilty of abusing his power after the impeachment trial, flatly denied as “fake news” a Twitter rumor Friday night that her boss had committed to not fill a vacancy before the inauguration. “This is grossly false,” said Liz Johnson, the spokeswoman. Romney made no mention of what to do about the vacancy in his own statement offering condolences.
A wildcard: In Arizona, where Democrat Mark Kelly has consistently been favored over appointed GOP Sen. Martha McSally to finish the rest of the late John McCain’s term, the winner could be sworn in as early as Nov. 30, according to Republican and Democratic elections lawyers who spoke to the Arizona Republic.
A report from the Congressional Research Service in 2018 found that it has taken an average of about 70 days for the Senate to confirm a president’s nominee. The election is 45 days away. It usually takes a while for documents to be submitted and reviewed, FBI background checks to be completed, hearings to be held, etc.
3) This vacancy gives Trump the opportunity to reframe the presidential race away from the coronavirus.
Polls show Trump losing to Biden nationally, as well as in the battlegrounds most likely to decide the election. Majorities of Americans disapprove of his handling of the pandemic. Even though nearly 200,000 Americans have died from the contagion, it seems probable that the court vacancy will become a, if not the, central focus of the homestretch. It will certainly be a major issue in the first presidential debate in 10 days.
A Marquette Law School national survey to gauge public opinion about the Supreme Court, completed three days before Ginsburg’s death and released Saturday, found that she was the best known of the nine justices. She was seen favorably by 44 percent and unfavorably by 19 percent. The survey found that 48 percent described the choice of the next justice as “very important” to them and 34 percent said it is “somewhat important,” while 17 percent say it is not too or not at all important to them.
Notably, the Marquette poll found that 67 percent of the country thought there should be hearings if a vacancy were to occur during the 2020 election year and 32 percent said there should not. Among likely voters who support Biden, 59 percent said the next court appointment is very important. Among likely voters who support Trump, 51 percent said so. That latter number will probably spike now that there actually is a vacancy.
4) This vacancy will drive up turnout and energy on both sides, but it could wind up motivating the right more than the left.
When Trump announced last week that he might nominate Republican Sens. Ted Cruz, Tom Cotton or Josh Hawley for the next Supreme Court vacancy, I wrote about how judicial appointments might wind up motivating the left in 2020 more than the right. That would be a major reversal from 2016.
There were early indications of just how much RBG’s death will galvanize the left. Democratic donors gave more money online in the 9 p.m. hour than in any other single hour since ActBlue launched 16 years ago: $6.2 million. But that record was broken in the 10 p.m. hour, when donors gave Democratic candidates $6.3 million – which the Times notes is more than $100,000 per minute.
Demand Justice, a liberal advocacy group created to get Democratic voters to care more about judicial appointments, put out word that it will launch a $10 million ad campaign aimed at keeping the seat open.
But, but, but: Conservatives who are uncomfortable with Trump but care deeply about abortion also now have a reason to get engaged in the race. Privately, even many Democratic strategists acknowledged that this will bring some wayward evangelicals back into Trump’s camp.
Quote of the day
“This is an animating issue for the entire right,” said a former White House official. “It unifies everybody from Mitt Romney to the most hardcore MAGA Trump person out there at a time when Trump needed that. It will give something to fight for over the next 45 days or so that could potentially remind people, ‘Okay, this is why I voted for Trump, and this is why even if he makes me crazy sometimes, I’ve got to stick with him.' " (Philip Rucker, Matt Viser, Sean Sullivan and Robert Costa)
5) This vacancy makes ticket splitting less likely in November, increasing the odds that Republicans hold the Senate.
The 2016 election was the first time since the direct election of senators started more than a century earlier that the same party won the presidential and Senate race in every single state. Fewer people split their tickets.
This is how, even though the 2018 midterms brought a blue wave in the House, Republicans expanded their majority in the Senate. Four Democratic senators lost reelection in states Trump had carried in 2016, including Heidi Heitkamp in North Dakota, Donnelly in Indiana, Claire McCaskill in Missouri and Bill Nelson in Florida. A major reason that conservatives voted for GOP challengers in those states was because of the Kavanaugh fight. That said, exit polls made clear that anger about Kavanaugh, and the treatment of professor Christine Blasey Ford, motivated many suburban women to vote for Democratic candidates in House races.
If this dynamic reapplies to the 2020 Senate map, it seems like Ginsburg’s death is going to be bad news for Collins in Maine, who has already been under fire in her blue state for voting to confirm Kavanaugh and Gorsuch. A New York Times-Siena College poll published Friday, before the news, found that 55 percent of likely voters in Maine opposed Collins’s vote for Kavanaugh, while 38 percent approved. Democrat Sarah Gideon led Collins by 5 points, 49 percent to 44 percent, in the poll, which also found that Mainers trust Biden over Trump to make a Supreme Court pick by a 22 point margin, 59 percent to 37 percent.
But the unexpected vacancy is very likely to work to the advantage of incumbents like McConnell, who is running for reelection in a red state where Trump remains more popular than him, as well as Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.), who averted a primary challenge in 2020 because of his vigorous defense of Kavanaugh. Polls show Graham is in a tight race, but even a very vicious court fight will probably play right into his hands and could make the difference.
A Supreme Court opening, and the culture wars that will come with it, will also make it harder for Democratic challengers to score upsets in red states like Montana, Kansas and Texas. But it will hurt someone like Sen. Cory Gardner (R-Colo.), since Trump is widely expected to lose that state in the general election.
In a purple state like North Carolina, the vacancy will make the Senate race more of a base election than it would have been otherwise. Sen. Thom Tillis (R-N.C.) was trailing Democratic challenger Cal Cunningham by 5 points, 42 percent to 37 percent, in a Times-Siena poll released this week. But voters were more evenly divided on the Supreme Court, with 47 percent trusting Biden most to pick a new justice and 44 percent preferring Trump. Tillis responded to Ginsburg’s death by reframing his race as a referendum on “the future of the Supreme Court” and the contrast between the conservatives he and Trump would support and “the liberal activist” Biden would nominate and Cunningham would vote to confirm.
For a host of reasons, it seems unlikely that Trump would nominate any of the three senators on his shortlist for the Ginsburg seat. Cruz (R-Tex.) said on Fox Business last weekend that, while he was honored to be included, he does not want to get nominated. “It’s not the desire of my heart,” he said. “I want to be in the political fight.” Cruz, who plans to run for president in 2024, has written a 256-page book about the Supreme Court that will be published on Oct. 6 called: “One Vote Away: How a Single Supreme Court Seat Can Change History.”
6) Few Republican senators will care about being charged with rank hypocrisy.
Obama said in a statement at 11:51 p.m. Friday that the Senate should adhere to the standard McConnell created in 2016. “A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment,” the former president said. “The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle. As votes are already being cast in this election, Republican Senators are now called to apply that standard.”
McConnell justified his flip-flop by arguing that Republicans control the Senate and White House in 2020 while two different parties controlled those institutions in 2016. “Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” he said.
There are countless videos of GOP senators saying it would be terrible to confirm a justice in an election year, but there is little reason to think that most of them will feel any compunction about completely reversing themselves. Consider some of these examples:
In February 2016, nine months before the election, Gardner told the Denver Post: “I think we’re too close to the election. The president who is elected in November should be the one who makes this decision.”
Graham even promised in March 2016 that he would oppose anyone Trump tried to put on the Supreme Court in 2020: “I want you to use my words against me: If there’s a Republican president … and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination.’ And you could use my words against me, and you’d be absolutely right. We are setting a precedent here today, Republicans are,” he said. “That’s going to be the new rule."
“No Supreme Court nominee should be considered by the Senate before the next president is sworn into office,” Sen. David Perdue (R-Ga.) said on the Senate floor in 2016.
“This is about the fact that we have a president who is moving out of his residency and we have a very, very significant election coming up where we want the people to speak out. We want to hear their opinion on this. They will do that by electing a new president,” said Sen. Joni Ernst (R-Iowa).
“I don’t think we should be moving on a nominee in the last year of this president’s term,” Sen. Marco Rubio (R-Fla.) said in 2016. “I would say that if it was a Republican president!”
Don’t hold your breath that Rubio will say that now that it’s a Republican president.
When Biden was chairman of the Senate Judiciary Committee in June 1992, he had said: “Once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. Otherwise, it seems to me, we will be in deep trouble as an institution.” McConnell repeatedly cited that quote four years ago to justify blocking Obama’s nominee, Merrick Garland, and to attack Biden as a hypocrite.
Democratic vice-presidential nominee Kamala D. Harris now sits on the Senate Judiciary Committee, which will consider any nomination. “Tonight, we mourn,” California’s junior senator said in a statement late Friday night. “Tomorrow, we fight for her legacy.”
7) There will be immense pressure from the left for Democrats to pack the Supreme Court if they win the Senate majority.
Sen. Ed Markey (D-Mass.) tweeted at 9 p.m. Friday: “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.” This has 41,000 retweets and nearly 180,000 likes.
Markey laying this marker quickly caused private grumbling among top Democrats who will be combatants in the looming confirmation battle. They fear that this will be the far left’s new “defund the police” mantra, which may sound good to some hardcore lefties in the streets but repels moderate voters who actually decide elections.
Liberal calls for court packing seem more likely to motivate Republicans than Democratic voters. The Marquette poll released Saturday shows 61 percent of Democrats favor increasing the number of justices on the court, while 39 percent oppose doing so. Only 34 percent of Republicans favored expanding the court, and 65 percent oppose it.
Biden spoke out against adding more justices to the court during the Democratic primary contest last year when some of his rivals were pushing the idea.
Nevertheless, expect some liberal leaders to persist in calling any Trump nominee illegitimate and pushing senators and Democratic candidates to endorse packing the court. In fact, a flood of commentary to that effect published overnight.
Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, makes the case for court packing in the Los Angeles Times: “The number of justices on the court is set by federal law, not the Constitution. Since its beginnings, it has ranged from having between five and 10 members. Since the 1860s, it has remained at nine. When President Franklin Roosevelt suggested expanding the Supreme Court in the 1930s to overcome court hostility to the New Deal, he was repudiated for trying to pack the court. But the current situation is different. This would be a response to chicanery by Republicans.”
“Democrats are in the minority in the Senate (although the Democratic ‘minority’ represents 15 million more people than the Republican ‘majority’),” writes Vox’s Ian Millhiser. “Trump’s two previous Supreme Court appointees … also share a dubious distinction. They are the only members of the Supreme Court in history to be nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country. If Trump fills the Ginsburg seat, fully one-third of the Court will be controlled by judges with no democratic legitimacy. … But Democrats still have one tool left in their chest. And if they don’t use it, well, Trumpism is likely to dominate the Supreme Court for decades or more.”
Senate Minority Leader Charles E. Schumer (D-N.Y.) will be at risk of a primary challenge from the left in 2022, perhaps from a marquee name like Rep. Alexandria Ocasio-Cortez, if he is perceived as not pulling out all the stops to block Trump’s pick. He reacted to Ginsburg’s death by repeating, verbatim, McConnell’s own words from right after Scalia’s death:
8) The coming fight will further erode public confidence in the neutrality and independence of the courts.
It is unimaginable now, but Ginsburg was confirmed by the Senate in 1993 on a 96 to 3 vote. There will probably never again be such a lopsided vote for someone to go on the highest court in the land. An angry and fragile country is about to become much more so.
“Political leaders are plotting scored-earth tactics on ground that is already scorched,” Politico founding editor John Harris writes in a column. “The violent summer of 2020 made clear how combustible this country is when significant numbers of Americans conclude that the system is not on the level, that official power is untethered to principle, that familiar pieties about neutral law and blind justice are fraudulent. The fall of 2020 has now arrived with what promises to be an all-consuming debate in which important people are not even pausing to mouth those pieties.”
9) Chief Justice John G. Roberts Jr. will no longer be the swing vote.
Confirming a Trump pick would create a 6-to-3 majority for GOP-appointed justices. A conservative replacing Ginsburg will have vastly greater consequences on the law than Gorsuch replacing Scalia and would dilute Roberts’s power as the median justice. That could reverberate for generations.
“Roberts emerged as the pivotal member of the court in its most recent term, sometimes siding with his fellow conservatives to form a majority and sometimes with the court’s liberals. But his power depends on his being at the center of the court, with four justices more conservative and four more liberal,” writes Robert Barnes, our longtime Supreme Court beat reporter. “Thomas, 72, and Samuel A. Alito Jr., 70, consistently take positions more conservative than those of Roberts, who has shown he is more interested in preserving the court’s reputation as being above the partisan fray than in reaching the conservative outcomes he might personally favor. For instance, in the term just completed, Roberts joined liberals in striking down a restrictive abortion law in Louisiana. It was the first time he had voted against abortion restrictions, but he said the outcome of the case was dictated by the court’s decision just a few years ago on a similar law in Texas. But the rest of the court’s conservatives went the other way.”
And then there is the Affordable Care Act. A week after the upcoming elections, the court is scheduled to hear oral arguments in the case brought by Republicans to invalidate the 2010 health-care law. Roberts has twice saved the ACA in 5-to-4 rulings by joining Ginsburg. The Trump administration is supporting the case to get rid of the law in its entirety, and a new Trump justice could deliver the decisive fifth vote to make that happen.
Social media speed read
Bill Clinton, who nominated Ginsburg to the court 27 years ago, said she “exceeded even my highest expectations.” Hillary Clinton reflected on how she helped pave the way for a generation of other women in public service:
Other liberal women leaders also expressed heartache:
Rep. Doug Collins (R-Ga.), who is challenging appointed GOP Sen. Kelly Loeffler this fall, slammed Ginsburg over her support for abortion rights:
The president’s personal lawyer offered a more gracious reaction:
The husband of former Democratic presidential candidate Pete Buttigieg highlighted RBG’s pivotal vote for marriage equality in 2015:
Illustrating her cultural resonance, a chorus of Hollywood celebrities also weighed in:
Videos of the day
In 2018, Stephen Colbert worked out with Ginsburg on his show:
On “Saturday Night Live” during the coronavirus lockdowns in April, Kate McKinnon parodied Ginsburg’s workout routine from her apartment:
Finally, let's give the last word to Ginsburg herself. NPR's Nina Totenberg asked the justice last year whether she had any regrets. She reflected on how she might be a retired partner from a large law firm had it not been for all the sexism she faced when she was trying to break into the field: