It’s been an explosive election year, with an impeachment, pandemic, economic freefall, George Floyd, riots and wildfires. The recent death of Supreme Court Justice Ruth Bader Ginsburg added more fuel to the unfolding political firestorm. Less than two months before the election, one question looms large: Will Republicans succeed in filling her seat with another conservative justice?
The answer is likely yes. Hours after Ginsburg’s death announcement, Senate Majority Leader Mitch McConnell declared in no uncertain terms that a Trump nominee would fill the vacancy.
It’s a stark reversal of his position in 2016, when Obama sought to confirm a replacement for Justice Scalia. McConnell and other Republicans blocked the nomination because they didn’t believe the seat should be filled so close to a presidential election. Senator Lindsey Graham echoed that position, prophetically inviting Democrats to use his words against him if a similar vacancy happened in 2020. (Needless to say, the Dems are now taking him up on that offer.)
The impact of seating another Trump justice
Trump has already filled two Supreme Court seats during his presidency (Neil Gorsuch and Brett Kavanaugh). With a third, the composition of the court would decidedly lean conservative by a margin of six to three. According to some analysts, it would be the most conservative Supreme Court since the 1950s.
Of course, SCOTUS is supposed to be apolitical. Over the past term, conservative justices have bucked the position of their nominating party in several key decisions. But another conservative justice would jeopardize two priorities of the Democratic platform: the Affordable Care Act and Roe v. Wade. (The court is set to hear the Affordable Care Act challenge on November 10, and the outcome will have a big impact on health care for millions of Americans.)
What options do Democrats have?
The numbers don’t look good for Democrats. Facing a 47 to 53 disadvantage in the Senate, they would need to flip four Republicans to block a Trump appointee. Mitt Romney – their likeliest prospect to oppose the nomination – dashed those hopes, saying he would vote based on the candidate’s qualifications.
That leaves Democrats grasping at straws to stop the nomination. And what, exactly, are those straws?
Packing the Court
One option is to increase the number of Supreme Court seats – known as “packing the court.” To do so, Democrats would have to win enough seats in Congress to pass legislation, and, of course, win the presidency. With more Supreme Court seats to fill, they could appoint more liberal justices to outweigh the conservatives.
Packing the court is a bold and risky play. If Congress can tinker with the court size to dilute the president’s appointment power (and, potentially, set the stage to overturn prior Supreme Court decisions), that sets a dangerous precedent. It would undermine the delicate system of checks and balances ensured by an independent judiciary – a foundation of modern democracy.
Such a move has only succeeded once before. In 1866, Congress decreased the court from nine to seven seats in a desperate ploy to block President Andrew Johnson from appointing more justices. While it worked in the short term, the legislation was reversed just a few years later. (Franklin Delano Roosevelt later sought to increase the number of seats from 9 to 13 as a way to balance out the “nine old men” making course-changing decisions for the country. His own party shut him down.)
Another roadblock? Biden himself has vehemently opposed expansion of the court, saying it would undermine the court’s credibility. Democratic senators Bernie Sanders and Michael Bennet have voiced similar positions.
Other ways to alter the court
Instead of packing the court, Democrats could try to impose term limits on justices – but that would require a constitutional amendment. If Trump gets re-elected, but Democrats win Congress, they could introduce legislation to limit the number of Supreme Court picks that each president gets (or divide them equally between the parties), which would prevent further Trump appointments. By that time, however, it would be too late to swing the court’s composition back in their favor.
What options do Dems have in the meantime?
The Democratic-controlled House could take the more immediate step of impeaching Attorney General Bill Barr – and, perhaps, bringing a second round of impeachment charges against Trump. If the House were to again pass articles of impeachment, the Senate would be forced to start another trial, leaving little time to jam through a nomination.
Speaker of the House Nancy Pelosi wouldn’t rule out impeachment as one of the “arrows in our quiver” to stop a Trump nomination. Senate minority leader Chuck Schumer also stated that “nothing is off the table.”
Such a drastic move could backfire, however. After one failed impeachment, many Americans would potentially be soured on the prospect of another attempt, even if it wasn’t directed at Trump himself. The Democrats could be risking key votes in swing states by proceeding with such a strategy.
A less drastic form of opposition would involve stall tactics. Democratic senators could drag their heels on every routine procedural matter, hoping to run out the clock before the nomination gets pushed through. Republicans could likely counter those delays, however, by easily sidestepping procedural requirements through a majority vote.
A grim foreshadowing?
While Democrats (and some Republicans, when the tables were turned in 2016) view appointing a Supreme Court justice on the eve of a heated election as undemocratic, Trump is professing the opposite: He’s proclaiming a constitutional duty to fill the vacancy. He believes a full court will be needed to address the constitutionality of mail-in ballots. It’s a harrowing position, given his stated intent to challenge the results of the election if Biden wins. Referring to the ballots as a Democratic “scam,” Trump is predicting that the election results will end up before the Supreme Court – hence his scramble to fill the seat now.
However the cards fall, we’re likely in for a rollercoaster ride. Buckle your seatbelts.