Justice Ruth Bader Ginsburg: trailblazing icon; civil rights veteran; judicial superstar; the Notorious RBG. Justice Ginsburg was an institution in American law and popular culture, and it’s difficult to imagine a world, let alone a court, without her characteristic witty asides and sharp questions. Given Justice Ginsburg’s current status as a liberal icon, it’s hard to believe that she was actually considered a conservative choice when President Clinton picked her for the Supreme Court in 1993, pushed by Sen. Orrin Hatch (R-UT) as a moderate consensus-builder. Now, whether Justice Ginsburg shifted leftwards on the court or whether the court moved to the right depends on who you talk to, but Justice Ginsburg’s passing certainly leaves a void on the Supreme Court’s left flank. Sadly, we, as a country, don’t have much time to mourn and reflect upon her life and legacy. You see, the battle is coming.
“Hypocrisy” v. Politics
The last Supreme Court Justice to die on the Court was Justice Antonin Scalia. The conservative powerhouse passed away on February 13, 2016, and Senate Majority Leader Mitch McConnell almost immediately declared that, because it was an election year, the Senate would not consider a nomination to fill the vacancy. Surprising almost no one, McConnell now has vowed that the Senate will vote on President Trump’s nominee, even though this vacancy opened more than seven months later into the year than the vacancy from Justice Scalia, and though Americans are already voting to potentially replace President Trump.
Now, some have decried the hypocrisy of this, while others have defended his stance, following the principle that it is reasonable for a Senator to set different standards for members of your own party versus another party.
Regardless, McConnell has a thin needle to thread here. As of this writing, already two Senate Republicans have come out in opposition to considering any nominee before the November elections, which means McConnell can afford only one more defection before he loses his leverage. Now, some argue that McConnell would not take such a firm stance if he did not have the votes to back it up. However, those individuals would do well to look at Sen. John McCain’s defeat of the ACA Repeal in 2017 and the last-minute sinking of Ryan Bounds’ nomination to the Ninth Circuit in 2018. The Majority Leader, masterful as he is, is not infallible.
Additionally, the timing of this vacancy is not great for Republicans. We are now six weeks to November 3, election day. No nominee has been confirmed within six weeks of announcement since Justice John Paul Stevens in 1975. Simply put, there isn’t enough time. The modern confirmation process (at least on the Supreme Court level) takes too long.
So, even if President Trump announces a nominee today, the vote on confirmation isn’t coming until the lame duck, at which point, either Trump has won re-election, which eases the pressure, or he has lost, which opens a new Pandora’s box.
Ever since her confirmation to the Seventh Circuit in 2017, Judge Amy Coney Barrett has been considered heir apparent to the Supreme Court. It’s understandable why: Judge Barrett is well-credentialed, young (48), and very conservative. She is rightly deemed the frontrunner to fill this vacancy. She will also probably be the nominee. President Trump, for all his mercurial temperament, has been fairly stolid in his Supreme Court choices, both times picking the conventional frontrunners over less conventional choices. In any other year, one could confidently say that Judge Amy Coney Barrett will be the nominee.
However, this is an election year. Specifically, it’s an election year in which the President has been consistently trailing his opponent in polls and one where he needs to use the nomination as a tool to upend the stability of the race. As such, it would not surprise me to see the President turn to two more unconventional choices from his Supreme Court list.
One is Judge Barbara Lagoa from the Eleventh Circuit. Lagoa was specifically identified by the President as a possible nominee for this seat, and has two major plus points going for her. First, Lagoa is from Florida, a key swing state where the President needs to win in order to secure re-election. Second, Lagoa is Hispanic (in fact, the only Hispanic nominee to the Court of Appeals made by President Trump). In an election where Hispanics make up a key voting bloc, nominating Lagoa could be a key strategic move by the President to seek an advantage.
The other is Judge Bridget Bade from the U.S. Court of Appeals for the Ninth Circuit. Although she is also on the President’s shortlist, Bade’s name doesn’t come up as often as Lagoa’s or Barrett’s. However, Bade could neutralize a key ticking time bomb for the President. Namely, in Arizona, appointed Sen. Martha McSally is consistently running behind Democratic candidate Mark Kelly in the polls. If Kelly defeats McSally, he could, in theory, be appointed to replace her immediately (as this race is a special election), which would cut the GOP majority they’ll need to confirm a nominee. Appointing Bade could put both Kelly and Sen. Kyrsten Sinema in a tricky position, as they’d have to stand against a popular judge from their own state. Even if one of them flips to support Bade, that’d ease the path to confirmation quite significantly.
The Storm to Come
As noted above, regardless of who the nominee will be, the risks to moving forward on a nominee are great. Gone are the days when Supreme Court confirmations were largely intellectual exercises. It is now a body sport where nothing less than total victory is celebrated. Unfortunately, regardless of whoever wins this particular nomination fight, the country as a whole is likely to have lost.
One can only hope that advocates and senators avoid bombast and brinksmanship, set out clear lines of principle in nominations and confirmations that apply equally to nominees of either party, and take us back to a bipartisan and nonpartisan confirmation process. Then again, I’m not holding my breath. The era of RBG is truly over.