How Ruth Bader Ginsburg's death could affect Senate races – and Trump v Biden

Tom McCarthy, national affairs correspondent
·4 min read
<span>Photograph: Yuri Gripas/Reuters</span>
Photograph: Yuri Gripas/Reuters

On the question of supreme court nominees, the Republican senator Susan Collins has repeatedly threaded the same political needle. It is one with a shrinking eye.

Related: Ruth Bader Ginsburg changed America long before she joined the supreme court | Moira Donegan

A 64% majority of voters in Collins’ home state, Maine, believe abortion should be legal in all or most cases – yet Collins has voted to confirm Neil Gorsuch and Brett Kavanaugh, two justices nominated by Donald Trump who could roll back abortion rights.

Collins has explained that based on her private impressions, the justices would not overturn the landmark Roe v Wade decision.

But with the death on Friday of Ruth Bader Ginsburg, and a vow by Trump and the Senate majority leader, Mitch McConnell, to replace the liberal lion despite the proximity of a presidential election, the eye of the needle may have closed.

Collins is in the middle of a difficult re-election fight of her own, one in which voters will weigh her commitment on issues including reproductive rights. Recent polls have put her as much as 12 points behind her Democratic rival, Sarah Gideon.

Now, it appears Collins will be pressured to pass judgment on a third Trump nominee, whom the president pledged on Saturday to select “without delay”, even though the Senate might not vote until after election day. This time, in the judgment of activists on both sides of the abortion issue, a vote in favor would clearly be a vote in favor of overturning Roe.

This Month, Collins told the New York Times the calendar was too close to the election to advance a new justice.

“I think that’s too close, I really do,” she said.

On Saturday afternoon, the senator duly sought to straddle a particularly nasty chasm. Though Trump had “the constitutional authority to make the nomination” and she would have “no objection to the Senate judiciary committee beginning the process”, she said, the decision “should be made by the president who is elected on 3 November”.

Collins is not alone among senators for whom the death of Ginsburg has given rise to a potential political crisis. In battleground states across the country – North Carolina, Arizona, Colorado, Iowa, South Carolina, Georgia – Republicans are locked in close re-election fights that could be tipped by the battle over the next supreme court justice.

The political earthquake could shake the presidential election as well, as Joe Biden seeks to benefit from a surge of enthusiasm among progressives alarmed by the conservative hijacking of the court. Trump could likewise benefit if evangelicals are galvanized by an opportunity to capture the court for a generation.

Which way the politics will break is not clear. While McConnell has vowed to hold a vote on Trump’s nominee, he is working with a slim majority and it is not clear he will be able to rally his entire caucus behind him. As well as Collins, potential defectors, in theory at least, include Senator Lisa Murkowski, who told Alaska Public Radio on Friday: “I would not vote to confirm a supreme court nominee. We are 50-some days away from an election.”

Murkowski is not up for re-election and neither is Mitt Romney of Utah, seen as another potential defector, or Charles Grassley of Iowa, who when chairman of the Senate judiciary committee laid down a principle that supreme court nominees should not be advanced in election years.

But other key Republican senators are facing tight re-election bids that could yet define their vote. They include Thom Tillis of North Carolina; Cory Gardner of Colorado; Joni Ernst of Iowa; and Arizona’s Martha McSally.

Like Grassley, Lindsey Graham, the current judiciary committee chair, vowed never to consider a supreme court nominee in the last year of a president’s term. On Saturday, however, he made clear he was ready to work with McConnell and Trump.

Protesters against the Kavanaugh nomination, outside Susan Collins&#x002019; offices on Capitol Hill in September 2018.
Protesters against the Kavanaugh nomination, outside Susan Collins’ offices on Capitol Hill in September 2018. Photograph: Chip Somodevilla/Getty Images

In many battleground states, pollsters have found higher levels of trust in Biden than in Trump when it comes to making a supreme court pick.

The fight over Trump’s third pick would be all-consuming, as likely to register on voters’ minds as any other development in a turbulent election year. Furthermore, Trump and Republicans in the Senate could face a political risk by picking such a fight in advance of the election.

Related: Ruth Bader Ginsburg obituary

In Maine, 55% of voters told the New York Times they disapproved of Collins’ vote to confirm Kavanaugh in 2018, a decision that stoked huge fundraising for Collins’ opponent in Maine. The Times found that voters in Maine trusted Biden more than Trump to pick justices by a 22-point margin. The margin was 10 points in Arizona and three in North Carolina.

Analysts have recently seen an increased likelihood of Democrats capturing the Senate, based on Trump’s low approval rating and keenness among Democratic and some independent voters to eject the president from office.

If Democrats can take the Senate, they will assume the power to confirm any future supreme court nominees. But if the cost of their gaining that power is a third Trump justice, the change for many Americans could come too late.