A potential disaster for US law

The death of Ruth Bader Ginsburg has triggered a political fight over the appointment of a new Supreme Court justice, which has the potential to set back the constitutional rights of millions by decades, writes Hayden Thorne.

When United States Supreme Court Justice Ruth Bader Ginsburg died on 18 September, at the age of 87, the world, but in particular the US, lost not just an outstanding jurist but a long-time activist, a champion of women’s rights and a legal mind of the highest calibre.

Her death, however, also has profound consequences for the Supreme Court and a host of controversial legal issues. And it has created a storm of controversy over the proper nomination process and the unwritten conventions that govern it.

You may wonder why this is important? Why, in the broader context of COVID-19 and an upcoming presidential election, is the nomination of a judge so important?

The answer lies in the way the US Supreme Court operates—with considerably more power than the comparable New Zealand institution, with the ability to strike down state and federal laws that clash with the constitution. Moreover, justices are given life appointments, so once a court is formed it can be years before it will change. It is also a much more politicised body than in New Zealand, and its composition can be crucial to the interpretation and implementation of the law in crucial areas like minority rights, criminal rights, abortion, climate change, and many more.

It is no exaggeration to say the appointment of Ginsburg’s replacement could change the face of American law and politics for decades to come. It is a big deal.

Appointments to the court are made by presidential nomination, with the nominated candidate having to be confirmed by the Senate following hearings before the Senate Judiciary Committee. Up until 1975, the Senate vote had to be by a two-thirds majority, which in that year was changed to a three-fifths supermajority. In 2017, the Republican-controlled Senate amended the rules to require only a simple majority.

Ginsburg’s death has almost immediately triggered a political fight over the appointment of a new justice, which shows no sign of abating and has the potential to turn into an ugly, and election-shaping, battle.

Supreme Court vacancies arise only rarely in the final year of a president’s term—a justice with plans to retire will generally wait until the outcome of the election is known or will retire well in advance to give the sitting president the chance to make a considered nomination.

Informal convention would seem to dictate that when a justice dies late in a term the nomination should be made by an incoming president following an election. As with other conventions in recent times, it looks like Donald Trump will toss the handbook out the window. He has instead pledged to proceed with a nomination “without delay”.

Trump’s pledge, and the qualified support for that position from Senate Majority Leader Mitch McConnell, is particularly concerning because of the sheer hypocrisy (or political nous, depending on which side you take) of their position.

In March 2016, following the death of Antonin Scalia, then-President Barack Obama nominated Merrick Garland to fill the vacancy. At that point, more than 200 days before the election, Senate Republicans, led by none other than McConnell, refused to hold hearings on any Obama nomination and blocked the confirmation, arguing it should wait for the incoming president as per the informal convention above. Garland’s nomination expired and after the election Trump was able to nominate and confirm Neil Gorsuch.

We are now faced with a situation, roughly six weeks out from an election, where Trump and the Republican Party look set to try to push through a nomination and appointment before the election.

There are, at present, three possible scenarios that could play out.

Scenario one would see Trump make a nomination and the Republican-controlled Senate confirm that nomination either before the election or in a lame-duck session after the election but before the next presidential inauguration. This scenario has the potential to become an unmitigated disaster for the law in America.

Scenario two could see a Trump nomination who fails to receive confirmation in the Senate, in the same way Garland was not confirmed in 2016. For this to happen, four Republican Senators would have to vote against confirmation. Two Republican Senators—Susan Collins and Lisa Murkowski—have said they will do so, while other Republican Senators, especially those in tight election races, are coming under huge pressure from voters to do the same. In this situation, the next president would be able to nominate a new justice.

The third scenario would see Trump decline to make a nomination—something that seems unlikely given his history of illogical and erratic decision-making—but one that might be possible if it became overwhelmingly clear he did not have the votes to pass a confirmation hearing.

Scenario one has the potential to decisively change the balance of power on the court and set back the constitutional rights of millions by decades.

The current court, before Ginsburg’s death, was notionally a five-four conservative-liberal split, with Chief Justice John Roberts acting as something of a swing justice. Roberts has taken careful and thoughtful positions in controversial cases, sometimes siding with the Ginsburg-led liberal wing to protect past decisions, most significantly in abortion cases. He has a deep concern for the institutional reputation of the court and his own legacy as its leader and has adopted positions much closer to the court’s centre in recent years. This has seen something of a knife-edge balance on the court, with the liberal bloc able to prevail in cases where they could convince Roberts, or occasionally Gorsuch or Trump nominee Brett Kavanaugh, to join them. Samuel Alito and Clarence Thomas especially have long since been lost causes.

A Trump nomination would give conservatives a six-three majority on the Court, which would greatly dilute the ability of Roberts to follow a more centrist path and would significantly isolate the remaining liberal voices. In May 2019, I predicted Roe v. Wade, the landmark 1973 abortion rights decision, was safe under the current court. If Trump is able to push through a nomination, all bets are off. Likewise, a strongly conservative court may make further inroads into the already tattered precedents of the 1960s dealing with constitutional due process rights. The Black Lives Matter movement could also potentially suffer at the hands of a more conservative court—at the very least, they should expect no help from that institution.

A successful conservative appointment could, given the current age and health of the conservative bloc, set the court back decades. A liberal appointment, on the other hand, would preserve the court’s delicate balance and give at least some reassurance that issues could be decided on legal grounds rather than purely political considerations. The chance of a successful nomination seems equally finely balanced—although, if pushed, I think it unlikely, although by no means impossible, Trump will again have his way.

The Democrats and their supporters are piling the pressure on Republican Senators, with record fundraising to contest Senate elections. If they can continue to put this pressure on, and force Senators to effectively choose between supporting the nomination and their seat in the Senate, they may be able to stop the confirmation. Two Republican Senators have already come to the party—now the Democrats need to find two more.

Hayden Thorne is a PhD candidate in the History programme at Te Herenga Waka—Victoria University of Wellington, specialising in the United States Supreme Court.

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