Farewell Ruth Bader Ginsburg. You were a liberal Supreme Court Justice and a great standard bearer of justice. Every American will miss your wise perspectives and wit.
I know you were trying to live long enough to give Joe Biden the honor of replacing you. Sorry it didn’t work out. In your coveted seat in Paradise, you will no doubt have a bird’s eye perspective while witnessing the fireworks that will kick off Sunday during the lineup of news programs.
Here is the preliminary state of affairs. Donald Trump has the constitutional duty to replace RBG, even though his opponents are saying he does not. Trump haters will remind us that the Senate would not consider Merrick Garland, the man that Barack Obama nominated during his final year in office. Mitch McConnell, the Majority Leader of the Senate, indicated that the next president should be the one to nominate a new justice in an election year. The replacement would take Justice Scalia’s place on the Court. McConnell refused to take up the nomination of Garland and Bret Kavanaugh was confirmed. Now, we have a somewhat similar situation.
Trump will surely nominate someone who is a conservative that will impact the tenuous conservative/liberal balance of judges on the Court. Currently, there are four conservative judges, three liberal judges and Justice Roberts who sometimes votes with liberals. He is the swing vote.
If Trump manages to get a conservative confirmed to replace RBG, the Court would have five conservative justices, three very liberal justices and Roberts. But conservatives would no longer need Roberts to side with them to have their way. It would be a very important moment for the Court and could have a huge impact on American society and values.
What will Trump do? Presumably, he will move rapidly to nominate a new judge. Time is of the essence. The Senate must confirm with only a majority vote. Currently, the Senate has 53 Republicans and 47 Democrats and Independents who vote with them. To confirm, McConnell must find 50 senators to support the nominee. In a 50-50 tie, VP Pence will deliver the winning vote.
There appears to be three potential Republican holdouts, Murkowski of Alaska, Collins of Maine and Romney of Utah. If any other Republicans are not supportive, the nomination will fail.
Even though Amy Coney Barrett has the edge according to rumors, it might make sense for Trump to nominate someone familiar to the Senate to save time, like a member, to be the next Supreme Court Justice. Cotton of Arkansas and Cruz of Texas have been mentioned as contenders. By choosing someone familiar to the senators, the vetting time could be cut short. This strategy is a long shot.
The process will not be a smooth one. Democrats will harp on the following issues as they object to anyone nominated by Trump:
Garland’s nomination in the final months of the Obama administration. It should be noted that now Republicans control the presidency and the Senate. When Garland was nominated the presidency was in the hands of a Democrat and the Senate was Republican.
Replacing a liberal judge with a conservative judge will upset the current balance of power in the court.
Replacing a female judge with a male judge, assuming the nomination of either Cotton or Cruz, will create more resistance.
The history of all Trump’s possible nominees considering Roe v. Wade, gun control, civil rights, etc. will be controversial.
Trump’s presidential performance should not allow him to confirm three judges.
It’s going to be a zoo in Washington during the next several months. The pandemic, the election and the Supreme Court confirmation will serve to politicize our nation’s capital even more than it has been in the past.