Ruth Bader Ginsburg died on Rosh Hashanah, on Friday 18th September, aged 87, of pancreatic cancer complications: she died at home surrounded by her family, and I don’t feel quite so bad knowing my first thought was “Now Trump can put a third justice on the Supreme Court”, when I found that practically, Ginsburg’s last thought was almost the same: “My most fervent wish is that I will not be replaced until a new president is installed.”
The Senate Majority Leader, then as now, was Mitch McConnell, the Republican Senator for Kentucky. In 2016, McConnell said it was important for the Senate to “give the people a voice in the filling of this vacancy” because it was a Presidential election year, and in eight months time, McConnell said, “The American people may well elect a president who decides to nominate Judge Garland for Senate consideration” or “The next president may also nominate someone very different. Either way, our view is this: Give the people a voice.”
The next Presidential election is less than 7 weeks away.
McConnell has already said – in 2019 – that if a Supreme Court justice were to die or retire in the months before the next Presidential election, “Oh, we’d fill it“.
Donald Trump gave Merrick Garland’s seat on the Supreme Court to Neil Gorsuch – nominated 31st January, confirmed 10th April 2017.
Anthony Kennedy retired on 31st July 2018. Donald Trump announced his nomination to fill Kennedy’s seat, Brett Kavanaugh, on 9th July 2018, and Kavanaugh was confirmed on 6th October 2018.
While obviously McConnell would get a third Trump appointee in if he could, can he? Honest question: I don’t know the answer. It does look as if the ordinary process of Senate confirmation should take much longer than 7 weeks. [Answer: Shortest time from nomination to confirmation in recent Supreme Court history: 19 days.]
As I understand it, the living Supreme Court justices line up roughly: “liberal” (or at least, appointed by a Democratic President) – Stephen Breyer, Sonia Sotomayor, and Elena Kagan: conservative – Clarence Thomas, Samuel Alito, and Trump appointees Gorsuch and Kavanaugh: and nobody knows/aka swing vote: Chief Justice Roberts. (I may have got this wrong. Feel free to correct me.)
With Ginsburg alive, if Trump attempted some kind of swindle to get the election result assigned to him (to stop the count of postal votes in a state once the result has given Trump the electoral college votes of that state, for example) then the Supreme Court decision would be four-four Democratic-Republican with Roberts as the decider – and the Republicans couldn’t be *sure* Roberts would go along with their swindle.
Now Ginsburg is dead, if Thomas and Alito agree to support a Trump swindle (I presume Gorsuch and Kavanaugh definitely will), then the decision is four-three and the only thing the Chief Justice could do is provide a deadlock four-four – which is precisely what they have 9 justices on the court to avoid.
This is really disturbing. Someone tell me I’m wrong. I’d like to be wrong.