Election 2020

Ginsburg’s Death Could Change the 2020 Presidential Race

Trump will try to replace her quickly, saying the future of the Supreme Court is at stake.

Supreme Court Justice Ruth Bader Ginsburg
Supreme Court Justice Ruth Bader Ginsburg celebrates her 20th anniversary on the bench at the U.S. Supreme Court in Washington, D.C., on Aug. 30, 2013. Nikki Kahn/The Washington Post via Getty Images

The death of Ruth Bader Ginsburg, a liberal stalwart on the U.S. Supreme Court, on Friday could seriously affect the 2020 presidential race, despite her deathbed wish that she not be replaced “until a new president is installed.” 

Ginsburg, who had long been ill with pancreatic cancer, died at the age of 87, leaving a critical vacancy in a Supreme Court that in recent years has often seemed precariously balanced between Republican and Democratic positions, and at a moment when President Donald Trump is behind in the polls in his race with Democratic nominee Joe Biden.

According to ABC News, multiple sources close to Trump said he is expected to name a nominee to fill Ginsburg’s seat very soon, possibly in a matter of days—instantly turning the Supreme Court into a major campaign issue. And despite Senate Majority Leader Mitch McConnell’s 2016 effort to block then-President Barack Obama’s attempt to nominate a Supreme Court justice, Merrick Garland, saying it was inappropriate in an election year, he has already announced that he will try to confirm a Trump candidate in a Republican-majority Senate this year.  

“President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell said in a statement following Ginsburg’s death. McConnell argued that the situation was different than it was during Obama’s last year, since the same party (his own) controls both the White House and the Senate. But Biden, in a separate statement Friday night, said the Senate should wait until after the election. “The voters should pick the president and the president should pick the justice for the Senate to consider,” he said.

The question of a vacancy could easily fire up both Trump’s base and Democrats who are seeking to deny him a second term. The issue of whether Trump and McConnell could succeed in jamming through a replacement depends on a small number of Republican moderates in a 53-to-47 Senate. The political pundit Jeff Greenfield tweeted Friday night that the two Republican senators who have been most willing to defy Trump, Utah’s Mitt Romney and Alaska’s Lisa Murkowski, would likely vote “no” on filling the vacancy quickly. Lamar Alexander of Tennessee is another questionable yes vote on the Republican side. But the question could come down to Maine Sen. Susan Collins, who is facing a tough reelection campaign. She “is between a rock and hard place,” Greenfield wrote. “Yea’ or ‘nay’ hurts her.” Yet another critical question lies with Sen. Lindsey Graham of South Carolina, who chairs the Judiciary Committee that would confirm Ginsburg’s replacement. Though he has mostly been a strong Trump ally, Graham also said in 2018: “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election.”

Even so, many leading Republicans have been strategizing about a swift election-year replacement for Ginsburg since her last hospitalization in May. 

In 2016, McConnell explained his refusal to hold a hearing for nominee Merrick Garland as justified by the “Biden rule,” suggesting that the Senate should not hold confirmation hearings during an election year. But last year McConnell seemed to take those words back, saying with a smile that if a Supreme Court justice died in 2020, “Oh, we’d fill it.” Obama nominated Garland 237 days before the election; McConnell now has 46 days.  

It was not clear whether McConnell would try to confirm a new candidate before the election or wait until the so-called lame duck session of the Senate no matter what happens on Nov. 3. In an interview with Fox News’ Sean Hannity Friday night, Texas Sen. Ted Cruz, a Harvard Law School graduate who is considered one of the candidates to replace Ginsburg, said Trump needs to nominate someone right away. “We have a responsibility to do our job,” Cruz said. “We cannot let Election Day come and go and with a 4-4 court.”

Ginsburg had been criticized by some Democrats who thought she should have resigned after she turned 80 in 2013 and marked her 20th anniversary on the Supreme Court during Obama’s second term. But Ginsburg, who was renowned as a pioneer in the fight for equality for women (she was the subject of a hit 2018 movie, On the Basis of Sex; lionized in many recent books’ and became an internet sensation as “the Notorious RBG”), insisted on staying on, believing as most pundits did in 2016 that Hillary Clinton would defeat Trump. Instead, Trump was elected and, in what is likely to be one of his most lasting legacies, managed to appoint two conservative justices, Neil Gorsuch and Brett Kavanaugh.

Her replacement could crucially tilt the court either way. Though mostly conservative, Chief Justice John Roberts has stunned and annoyed conservatives with a series of votes that preserved Obamacare, among other liberal causes. Over recent months Roberts also joined narrow majorities that rejected Trump’s claims of immunity from grand jury and congressional subpoenas; opposed a Louisiana abortion law; prevented Trump from immediately ending the Deferred Action for Childhood Arrivals program; and affirmed federal civil rights protections for LGBTQ Americans.

What no one doubts is that Ginsburg leaves huge shoes to fill. Her entire career was defined by the fight for gender equality, one shaped by her personal struggles. Though she graduated at the top of her class from Columbia Law School, she couldn’t get a job at a law firm. Nevertheless, Ginsburg advanced to the highest positions and eventually an iconic status in her field, arguing cases that advanced gender equality along the way. As a lawyer and a founder and general counsel of the ACLU’s Women’s Rights Project, she affected many major fights for equality even before she joined the court.

According to Politico, days before her death, Ginsburg dictated this statement to her granddaughter Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”

Michael Hirsh is a senior correspondent and deputy news editor at Foreign Policy. Twitter: @michaelphirsh

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