U.S. President Donald Trump and congressional Democrats are in a fierce battle over the Supreme Court seat left empty by the death of Ruth Bader Ginsburg, a fight that could upend the presidential race little more than six weeks from Election Day.
Mr. Trump is vowing to unveil his nominee this week in a bid to swiftly give conservatives a 6-3 majority on the court. Democrats are pressing moderate Republicans to block the appointment until after the election, while threatening to expand the court and pack it with their own justices if they win the presidency and the Senate on Nov. 3. And two Republican senators have already signalled that they may defy the President and vote against his pick.
With major decisions looming before the court – including on whether to roll back Affordable Care Act protections to tens of millions of Americans and on possibly determining the outcome of the presidential election itself – the stakes are high. And both sides are using the war over the judiciary to motivate supporters in the hard-fought presidential contest, in which early voting has already begun.
Mr. Trump promised at a weekend rally in North Carolina that he would appoint a woman to the court. He named federal judges Amy Coney Barrett of Indiana and Barbara Lagoa of Florida as prospective candidates.
“I will be putting forth a nominee next week,” the President said. “I think it should be a woman because I actually like women much more than men.”
Mitch McConnell, the Republican leader in the Senate, has said he would push Mr. Trump’s nominee through. Such a move would break with Mr. McConnell’s own precedent, set in 2016, when he blocked a vote on Merrick Garland, then-president Barack Obama’s Supreme Court nominee, because it was an election year.
Mr. Trump’s Democratic rival, Joe Biden, warned of a “constitutional crisis” Sunday if Mr. Trump goes forward, and appealed directly to Senate Republicans to stop the President.
“Don’t go there. Uphold your constitutional duty, your conscience. Cool the flames that have been engulfing our country,” he said in Philadelphia. “The infection this President has unleashed on our democracy can be fatal.”
Mr. Biden reiterated an earlier promise to nominate the first Black woman to the court if elected.
Alaska Senator Lisa Murkowski on Sunday became the second Republican to oppose Mr. Trump’s move. “For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election,” she said in a statement. Susan Collins of Maine said Saturday that she believed whoever wins the presidency in November should fill the Supreme Court seat.
Whether either will stick to their guns is an open question. On previous occasions, such as Mr. Trump’s impeachment trial and the confirmation of Justice Brett Kavanaugh, Ms. Collins toyed with defying party leadership only to ultimately back down. Four Republicans would have to defect to stop the appointment.
Some Democrats said Congress should add more seats to the Supreme Court to dilute the conservative majority if Mr. Trump plows ahead with the move.
“If [the Republicans] were to force through a nominee during the lame-duck session – before a new Senate and president can take office – then the incoming Senate should immediately move to expand the Supreme Court,” Congressman Jerry Nadler tweeted.
Asked if the Democrats would take even more drastic measures, such as impeaching Mr. Trump or Attorney-General Bill Barr to gridlock the Senate before the election, House Speaker Nancy Pelosi refused to rule anything out. “We have arrows in our quiver that I’m not about to discuss right now,” she said on ABC.
Control of the court could have far-reaching consequences. In one major case set to be heard in November, Texas and several other conservative states are trying to overturn the Affordable Care Act, popularly known as Obamacare. Such a move could strip more than 100 million Americans of coverage for pre-existing conditions and deny 20 million people health insurance.
The Supreme Court might also have to weigh in on some of the dozens of current cases across the country over the rules for mail-in voting. Such a decision could determine the outcome of the election, much as the court did in 2000 when it stopped a recount in Florida and made George W. Bush president.
In addition, the court could be determining cases on abortion access and the status of “dreamers,” undocumented immigrants brought to the country as children, in the coming months.
The battle gives Mr. Trump a more welcome issue to campaign on than the coronavirus pandemic and hard-hit economy. Control of the court has been a central issue for conservative voters for decades.
Within 48 hours of Ms. Ginsburg’s death, the President’s campaign had already sent out four text blasts to supporters soliciting donations by invoking the court. At the North Carolina rally, his supporters chanted “fill that seat!” and the campaign promptly produced T-shirts with that message.
His choice of appointment could also give him an opportunity to reach out to specific demographics of voters. Ms. Lagoa, for instance, is both a seasoned judge and an Hispanic woman from a swing state.
Act Blue, the Democrats’ online fundraising portal, logged US$30-million in donations in the twelve hours after Ms. Ginsburg’s death. Crowds gathered outside the Supreme Court throughout the weekend to stand vigil, leaving messages and flowers in her honour.
The 87-year-old, who died Friday night of pancreatic cancer, was only the second woman appointed to the court. She was known for defending gender equality and voting rights. Her portrait, typically emblazoned with the nickname “Notorious RBG,” was plastered on T-shirts.
In a deathbed statement to her granddaughter, Ms. Ginsburg said her “most fervent wish” was that she not be replaced until after the next president is sworn in.
The tributes could be only a preview of the street protests likely to result if Mr. Trump fills the court seat. They would come amid a wave of demonstrations against police brutality and racism that have swept the country this summer in the largest demonstrations since the 1960s civil-rights movement.
The Globe and Mail, September 20, 2020