Donald Trump has vowed to fill the Supreme Court vacancy left by Justice Ruth Bader Ginsburg’s death “without delay”, setting the stage for a constitutional crisis just weeks away from what was already one of the most important presidential elections in recent history.
In the first indication of his plans since the passing of 87-year-old justice, Mr Trump said on Saturday it was his “obligation” to nominate a replacement justice to the nation’s highest court.
“We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices,” he said.
If Mr Trump succeeds in placing a new justice on the bench, he could tip the balance of the court even further in favour of conservative justices, creating a supermajority that would shape the country’s laws on key issues such as healthcare, abortion rights and immigration for a generation.
But the path ahead is not simple. Democrats have rallied to oppose the move, insisting that the appointment be made after November’s presidential election. The Democratic nominee, former president Joe Biden, led calls for a delay.
“There is no doubt, let me be clear, that the voters should pick the president and the president should pick the justice for the Senate to consider,” Mr Biden said on Friday evening.
Democrats have argued that Republicans must follow a precedent they set during Barack Obama’s tenure in 2016, when GOP senators blocked the nomination of Merrick Garland to the court because it was too close to an election.
Mr Obama himself has stepped into the fray, warning that democracy itself was at risk if Republicans pushed ahead to fill the seat before the election, and urged them to abide by the principle that “they invented” in 2016.
“A basic principle of the law – and of everyday fairness – is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment. The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle,” the former president wrote.
At stake in the coming political firestorm is an extremely rare opportunity for conservatives to dominate a branch of government co-equal to the presidency for decades to come. Supreme Court justices are lifetime appointments whose decisions shape policy by delivering the final ruling on laws.
.@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!
— Donald J. Trump (@realDonaldTrump) September 19, 2020
Some Republicans have long hoped that a conservative dominated Supreme Court could one day overturn Roe V Wade, the landmark decision that affirmed a woman’s right to an abortion.
In the coming years, the court will also likely rule healthcare and immigration reform.
The battle over the potential confirmation hearings on Capitol Hill was foreshadowed just hours after Justice Ginsburg’s death, as Senate Majority Leader Mitch McConnell sent a letter to his colleagues warning them of the “tremendous pressure” they would soon face to refuse a vote on any potential nominee to the nation’s highest court.
“For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry,” the senate leader wrote. “This is not the time to prematurely lock yourselves into a position you may later regret.”
He laid blame on Mr Biden, claiming the former vice president set a decades-old precedent as senator when he urged former president George Bush not to move forward with the Supreme Court nomination process until after the election. McConnell referred to the 1992 speech as the “Biden Rule”.
If Mr Trump does move forward with the confirmation process, as he is expected to, the president will only need 51 votes in the senate to confirm his nominee. The rules were changed to allow for a simple majority in 2017.
However, it would only take four Republican senators sided with Democrats to effectively strike down his nomination. Indeed, some have gone on the record to say they would not fill a Supreme Court vacancy in the midst of a national election cycle.
Reacting to the news of Justice Ginsburg’s death, Senator Susan Collins, who is facing a tough reelection battle in Maine, said Saturday that the senate should not vote until after the election.
“In order for the American people to have faith in their elected officials, we must act fairly and consistently – no matter which political party is in power,” she said in a statement.
While she said she would not object to Mr Trump nominating a candidate, she added that “given the proximity of the presidential election. However, I do not believe that the Senate should vote on the nominee prior to the election.”
“In fairness to the American people, who will either be re-electing the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on 3 November," she added.
Senator Lisa Murkowski of Alaska also said this month she would not vote for Justice Ginsburg’s replacement ahead of the election, saying: “Fair is Fair”.
There is also speculation that Mitt Romney might join the pair, as he did during a vote on impeachment earlier this year, when they gained the nickname “the Three Amigos”.
Another senator who could play a deciding role in a potential confirmation vote is the winner of an upcoming special election in Arizona.
If Democrat Mark Kelly manages to unseat Republican Senator Martha McSally in Arizona, he could be sworn into office as early as 30 November – perhaps in time to vote on a Supreme Court nominee. Current polls currently have Mr Kelly leading by more than six points.
Other Republicans who had previously committed to not confirming a Supreme Court justice during an election year have quickly changed their tune.
Senator Lindsey Graham rejected the idea of voting for a Supreme Court nominee during an election cycle in 2018, saying at the time: “If an opening comes in the last year of president Trump's term, and the primary process has started, we'll wait until the next election. And I've got a pretty good chance of being the Judiciary [Chairman]. Hold the tape."
The South Carolina conservative changed his tone by Saturday, however, saying in a statement that he would support Mr Trump “in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg”.
Mr Trump has already released an updated list of his possible Supreme Court nominees earlier this month, a group of more than 40 mostly conservative judges and attorneys general. Multiple women are among the list, including Amy Coney Barrett, a judge on the US Court of Appeals for the 7th Circuit, and Bridget Bade, who sits on the 9th Circuit. He has also included several prominent lawmakers, including Senators Ted Cruz and Tom Cotton.
As for Mr Biden, the former vice president has vowed to nominate a black woman to the Supreme Court should a vacancy open under his tenure in the Oval Office. His campaign has reportedly been working to develop a list of women who could fill the seat, though it has not released any specific names as of yet.
The White House sharpened its attacks against Mr Biden on Saturday, with press secretary Kayleigh McEnany calling on Mr Biden to release his own list of potential nominees in an interview with Fox News.
“The former vice president, in all due respect, instead of telling the current president what to do, he needs to tell voters where he stands," she said. “We don't know who is on his Supreme Court list. We don't know what kind of justices he would nominate.”
Justice Ginsburg, a liberal stalwart and trailblazing civil rights advocate, paved the way for women to serve in law offices and as legal scholars in institutions across the country. During her more than 27 years on the Supreme Court, she authored groundbreaking decisions including the 1996 ruling on the United States vs Virginia, which said that the state’s military institute could not deny women from enrollment.
The second woman to serve on the nation’s highest court, the 87-year-old was the recipient of the 1999 American Bar Association’s Thurgood Marshall Award for her defence of civil rights and gender equality.