The American judicial system is built in such a way that before the late Justice Ginsburg is laid to rest, the battle to replace her on America’s top court has begun.
Callous certainly, but it is the way the system is built. With Supreme Court Justices being appointed for life, the only time there is a vacancy is usually when a justice passes, or, in very rare cases, decides to retire – the last vacancy was prompted by the retirement of Justice Kennedy in 2018.
The death of Ruth Bader Ginsburg caused shocks throughout the United States, and the rest of the world, with Ginsburg being perhaps the biggest stay on Donald Trump’s attempts to rule the United States by decree, having been the driving force behind upholding Obamacare and striking down Trump’s ‘Muslim travel ban’.
The system to replace justices within the Supreme Court is simple – but often controversial. The president will nominate who they want to serve on the court and the Senate will then hold a confirmation hearing. This acts almost like a trial, where the nominee is asked questions by the Judiciary Committee and they have to prove their suitability for the bench.
The nomination of Brett Kavanaugh, who replaced Kennedy in 2018, was controversial as the Judiciary Committee’s Republican majority pushed through his nomination with relatively little scrutiny, despite the fact that an extremely credible allegation of sexual assault was made by Doctor Christine Blaisie Ford. The allegation that he had attacked her at a college party when they were both students gained significant attention in the media; however, the committee did not perceive the possibility of a sexual predator on the bench a serious enough matter to be given much consideration in the confirmation hearing.
Somehow, the confirmation hearings to replace Justice Antonin Scalia, who died in 2016, caused even more controversy when Scalia passed 7 months before the 2016 election. Obama nominated (as was his right and constitutionally decreed duty) Merrick Garland – a relatively moderate, Democrat-leaning justice – to fill the vacant seat. However, the Republican leader in the Senate, Mitch McConnell, decided that the constitutional duty for the Senate to hold a confirmation hearing did not apply in this case. He refused to schedule a confirmation hearing and the presidential election passed without Obama’s nomination ever being confirmed – Trump nominated Neil Gorsuch following his ascent to office, who the Republican Senate hurriedly confirmed.
Barack Obama: “Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.”
— Kyle Griffin (@kylegriffin1) September 19, 2020
In the hours after Justice Ginsburg’s death – with no hint of irony or sarcasm – Mitch McConnell stated that he would hold a confirmation hearing for whoever Donald Trump nominated for the bench, despite it now being less than two months from election day. Seven months may have been too close to the election for McConnell to hold a hearing, but it would seem seven weeks is not.
This means that it is likely that Ginsburg will be replaced, if not before election day (which is probably unlikely) but before inauguration day in January 2021, regardless of whether it is Donald Trump or Joe Biden taking the oath of office.
The question over who might replace Justice Ginsburg is entirely dependent on whether President Trump and the Senate can rush through a confirmation; this is a high possibility and the likelihood is Donald Trump will nominate a conservative justice from one of the Court of Appeals Circuits – the next highest Court in the United States, where most Supreme Court Justice’s herald.
One of the biggest names being suggested is that of former Justice Scalia protégée, Amy Coney Barrett. Her judicial philosophy, reportedly guided partly by her Catholic faith, is similar to that of the former Justice Scalia, meaning that should she be the new Justice there will be a 6-3 conservative lean within the court, significantly impacting the direction of the United States justice system over the coming decades.
In his appointments, Trump has tended to favour younger judges, with Gorsuch being 49 and Kavanaugh being 53 upon appointment to the Supreme Court. Amy Coney Barrett is even younger, at 48, meaning that the Trump administrations potential appointments will have an impact for decades. With lifelong tenures and judges frequently serving into their late eighties, there is every possibility that Trump’s justices will direct American law for as long as 40 years.
Before Justice Ginsburg’s death, the Court was split 5-4 towards Republican appointees, meaning that they tended to hold more ‘pro-life’ or anti-LGBTQ+ positions; Ginsburg was known for swaying the more moderate Chief Justice John Roberts on some opinions, resulting in a 5-4 liberal decision being handed down. With a Trump appointee, there would be relatively little opportunity for liberal decisions to be handed down.
Given that the ages of the Republican-appointed justices are currently fifty-five, fifty-three, sixty-five, seventy and seventy-two, it is likely that it is unlikely that a Democratic president will be in a position to swing the dial back towards a liberal court any time soon.
Many Americans are hoping that the Senate Democrats will be able to hold off on confirmation for whoever Donald Trump appoints until January, where a Joe Biden appointee (in the event of a Biden victory) would be able to take a seat at the court.
A Biden appointee, even if there is a Democratic Senate – which current polling shows is likely following November 3rd – may not be as progressive as Justice Ginsburg. She was perhaps, alongside Thurgood Marshall, the most important Supreme Court Justice in the fight towards true equality before the law; Biden’s reputation as a middle-of-the-road politician may result in a compromise candidate, perhaps even the re-nomination of Merrick Garland.
However, this would still likely be a far more balanced court than would be the case if Trump, as planned, pushes through his own pick. There is a significant fear that many of the progressive decisions made by the court could be overturned in a process known as judicial review, which allows the Supreme Court to reinterpret how the law is applied. The 2013 Obergefell vs Hodges case saw marriage equality realised for the first time, with the Supreme Court deciding in favour of the existing law permitting gay marriage. There is a fear that a 6-3 court could not only overturn this but the landmark 1973 Roe vs Wade case, which grants women the legal ‘right to choose’.
What’s on the ballot this time. Same sex marriage, abortions rights, women’s rights. the dreamers, roe vs wade, civil rights, voting rights, climate change, the environment, LGBTQ Rights, ACA & so much more the reason to vote. Our democracy is on the line!
— Kenya (@Comanche980x) September 19, 2020
Whatever happens over the next few months, the stakes for the direction American takes in the coming decades is now far higher. Ruth Bader Ginsburg was a fighter for women’s rights and a staunch advocate for social justice, her replacement – whether a Trump or Biden appointee – could well be determined to undo decades of progress towards legal justice in the United States.