September 25, 2020

In American history, a SCOTUS seat has been made vacant between July 1st and Election Day only four times. Presidents John Quincy Adams, Abraham Lincoln, and Dwight Eisenhower did not make an appointment before the election. Millard Fillmore made a nomination, but the Senate tabled it. Now, a new President has joined the group: Donald Trump. Under Trump, the GOP’s handling of the Supreme Court, federal appellate courts, and district courts, has been described as a “conservative takeover” of the American judiciary.

How strong is the threat of Supreme Court “capture” now that President Trump has pledged to appoint a replacement to the seat left by the late Justice Ruth Bader Ginsburg? Here, we analyze the path ahead for both parties. 

The recent passing of Justice Ruth Bader Ginsburg has reiterated a question which American voters and politicos have pondered since Ginsburg’s diagnosis of pancreatic cancer in 2009, her second bout with cancer in ten years: who will replace her on the Supreme Court bench? At the end of a long, illustrious career spent in defense of civil rights, Justice Ginsburg had become a sort of icon among the Democratic electorate. This only complicated the matter of identifying, nominating, and appointing a successor to her on the nation’s highest court. 

The stakes are as high as they are clear: if Justice Ginsburg were to be replaced on the bench by the Republican Party, then America risked ceding the Supreme Court over to the Federalist Society, a conservative movement vehicle which has amassed considerable power within the American political system. At least, that is what a panel of witnesses argued in a Senate Judiciary Committee hearing this past Tuesday, entitled “Maintaining Judicial Independence and the Rule of Law: Examining the Causes and Consequences of Court Capture.” The Federalist Society is a libertarian-conservative network of judges and lawyers founded in 1982 in reaction to, as Senator Sheldon Whitehouse noted, “the rise of the anti-war, environmental, civil rights and women’s rights movements.” In the time since, the network has expanded to over 70,000 judges and lawyers who have developed deep ties to the Republican Party in order to impose on the American judiciary a conservative vision in stark opposition to the philosophy behind the aforementioned movements. 

In fact, the Federalist Society is the organization behind President Trump’s “judicial takeover.” They provide lists of potential nominees to the Trump administration, who then implements a “ruthless, mercenary and single-minded” approach to appointing judges within the network to the American appellate courts -- the second most powerful rung on the judicial hierarchy. The Trump administration’s recently released list of potential Supreme Court nominees, which includesd Republican politicians like Senators Ted Cruz (D-TX), Tom Cotton (R-AK), and Josh Hawley (R-MO), was prepared by the Federalist Society and Heritage Foundation, a conservative think tank. 

These are demonstrably important issues to American voters. In 2016, then-candidate Trump breathed new life into his campaign by allying himself with the Federalist Society’s conservative counterrevolution. By becoming the conservative movement’s champion on hot-button issues like abortion, civil rights for LGBTQ people, and the Affordable Care Act, Trump was able to assuage concerns about his bonafides among the Republican base. According to polling, “26 percent of Trump voters said that the vacancy was the most important factor in their vote.” Now, in 2020, the Democratic base is the one mobilized by the American judiciary in response to the success of this conservative countermovement. Their primary concern is the future of the Supreme Court, and whether it will be used to strip down the gains to civic and political representation which followed the Civil Rights Movement. 

The Republican Party’s path to appointing a SCOTUS judge is as follows: 

• The President will make his selection, 
• after which the Senate Judiciary Committee will investigate and vett the nominee prior to a public hearing (recall the high-profile public hearings over Brett Kavanaugh’s nomination), 
• finally culminating in a Senate vote on the nominee. 

The Senate only requires a simple majority (51 votes in the affirmative) to close debate and confirm the appointment. Since Vice President Pence presides over the Senate and can weigh into the process, the Trump administration only needs to secure commitments from 50 Senators to appoint their nominee.  

Several important political and electoral dynamics will complicate matters between now and the November elections. For one, President Trump and Senate Majority Leader Mitch McConnell might have different preferences for the timeline on this process. President Trump might prefer to nominate a replacement prior to the November elections in order to rile up the Republican base and increase turnout. He may also attempt to push through a SCOTUS nominee prior to November 10, when the Supreme Court will begin hearing oral arguments over whether the Affordable Care Act (ACA) is unconstitutional. Repealing and replacing the ACA was a signature campaign promise of Trump’s in 2016, though the global pandemic has made it a less reliable issue to politicize. 

Taking this approach may just as well catalyze the Democratic base, a losing scenario for the Trump campaign given their reliance on low voter turnout. On the other hand, Sen. McConnell is animated by his interest in maintaining the Republican Party’s Senate majority. For this reason, he may not want to take the risk that comes with a politicized nomination process that could catalyze the Democratic electorate and cause the GOP to lose the Senate and White House. 

Therefore, signs point to an unfortunate scenario: Republicans waiting until the lame duck session, between election day in November and inauguration day in January, to push through a SCOTUS nominee. During this time, they will still have the majority in the Senate needed to confirm a judge, but they will be unencumbered by electoral considerations. Their hope would be to advertise and politicize the open SCOTUS seat as a way to rile up their base without actually compromising the reelection bids of their Senators in swing states like Arizona, Nevada, Michigan, among others. Coming out of November with control of the Senate, Executive, and Judiciary will be a tricky dance, but it is doable.

How can the Democrats respond? As Speaker of the House Nancy Pelosi has said, the Democrats still have “some arrows in [their] quiver.” Still, these arrows amount to procedural tactics to delay a vote, such as delaying a vote in the Senate Judiciary Committee and demanding 30 hours of debate prior to a vote in the Senate chamber. Additionally, if the Democrats make an argument that President Trump is mishandling the American judiciary, they may try to delay a vote by using their control of the House to impeach him. 

The Republicans have pledged to vote on a nominee between now and January, if not between now and November. In the meantime, they have yet to pass a legislative follow-up to the CARES Act, thus leaving the millions of Americans out of work, without healthcare, or both, to fend for themselves. Perversely, they appear poised to strike down the Affordable Care Act and complete the transition to a system that apportions healthcare on a market basis rather than one of meeting human need. 

What we as a community can do is to respond to these political actions with ones of our own. Nine states (MI, IL, PA, MN, NJ, SD, VT, WY and VA) have already begun early voting, with many more set to start over the coming weeks. Make a plan to vote, take your family and friends, and go cast your ballots. Make sure your plan takes into consideration the COVID-19 pandemic. States are dealing with voting during the pandemic differently. Some states are sending out requests for mail-in-ballots, while others are sending out ballots to all registered voters, while some are not even permitting the COVID-19 virus to be used as an excuse to request a mail-in-ballot. We have provided the details for voting during the pandemic in many states, so browse through the information, and make sure you share it with your friends and family.

The bottom line:  Our votes matter, and now more than ever. The Senate may be inclined to delay their vote for a new Justice until after the election. Doing so will allow them to consider the faultlines and opportunities presented by a new Senate and, potentially, a new occupant in the White House.