The recent hospitalization of Justice Ruth Bader Ginsburg following a year of health scares has raised the prospect of a Supreme Court vacancy in an election year and a partisan battle royal that would likely surpass the impeachment fight.
Liberal activists are already calling on President Trump to keep any possible Supreme Court vacancy open until after the 2020 election, but Senate Majority Leader Mitch McConnell (R-Ky.) has indicated he would fill a court vacancy next year, even though he blocked former President Obama’s nominee for most of 2016 after the death of Justice Antonin Scalia.
McConnell argued at the time that voters should have a chance to weigh in on the balance of the court.
Progressive groups say McConnell should apply that same thinking if there is a vacancy between now and Election Day.
“If we had a Supreme Court vacancy this year that Trump attempted to fill, it would be in the middle of an election year but not just any election year. It’s going to be a year in which Trump is likely to have been defending claims against abuse of power and obstruction of justice in an impeachment trial,” said Marge Baker, executive vice president of People for the American Way, a progressive advocacy group.
“Public trust in his presidency is pretty low so if there ever was a time for the argument that the American people should have a say in this election who the next Supreme Court justice is — as Mitch McConnell claimed after Justice Scalia died — this would be it. So I think it would be very controversial for that reason,” Baker added.
Conservative activists have rejected that argument, asserting that many voters in 2016 and 2018 were motivated by the future balance of the judiciary, giving Trump and Senate Republicans a mandate to confirm a Supreme Court pick during a presidential election year.
But they are expecting a brutal fight if there’s another vacancy, which could potentially shift the court on the landmark 1973 ruling in Roe v. Wade that established the right to an abortion.
“The last confirmation was hands down the most vicious and contentious in our nation’s history, and if there were another vacancy that Trump was filling, I think it would be only worse,” said Carrie Severino, chief counsel and policy director of the Judicial Confirmation Network, a group that supports conservative judicial nominees, referring to last year’s bruising battle over Justice Brett Kavanaugh.
Ginsburg, 86, was released from Johns Hopkins Hospital last week after suffering from a fever. She has also had surgery for lung cancer and received treatment for pancreatic cancer in the past year.
Ginsburg in 2018 said she would stay on the court “as long as I’m healthy and mentally agile,” adding that she hoped to serve until at least 2023.
Some liberal activists have speculated that conservative Justice Clarence Thomas, 71, may retire while Republicans still control the White House and Senate. Thomas in June dismissed any suggestion that he was thinking of stepping down.
Democratic activists and voters are the most fired up about the courts as they’ve been in years, as the makeup of the federal judiciary has tilted further and further to the right during Trump’s presidency.
One in four judges on the appellate courts have been appointed by Trump -- a milestone that McConnell and other Senate Republicans cheered last month.
Trump’s nomination of Kavanaugh to the Supreme Court was met with intense Democratic opposition that for a few days threatened to derail his selection.
Brian Darling, a GOP strategist and former Senate aide, said a fight over a Supreme Court pick in 2020 would well exceed the battle over Kavanaugh.
“It would be the biggest Supreme Court battle we’ve ever seen. There would be no comparison. It would make the Brett Kavanaugh fight look like a game of bean bag,” he said.
Darling predicted an election year Supreme Court showdown would eclipse even the partisan fighting over Trump’s impeachment proceedings.
“I think impeachment is already a done deal because everybody knows how it’s going to play out,” Darling said. “It’s all just posturing but when it comes to a Supreme Court battle, that’s a whole different ball game.”
Liberal activists think they would have a shot at derailing a potential Trump nominee next year as Senate Republicans will have to defend 22 seats, including seats that Democrats have a good shot of picking up, particularly in Arizona, Colorado, Maine and North Carolina.
After watching vulnerable Democratic incumbents such as former Sens. Claire McCaskill (D-Mo.) and Joe Donnelly (D-Ind.) lose in 2018 — losses they both attributed to the messy partisan fight over Kavanaugh — vulnerable GOP senators may be reluctant to support a controversial Trump pick.
“While defeating a Supreme Court justice next year would appear to be challenging, it’s not impossible primarily because more and more voters in target states may well share their concern with their senators up for re-election,” said Nan Aron, the president of Alliance for Justice, a liberal advocacy group that focuses on judicial nominations.
“I can see voters in Colorado, Arizona, Maine, North Carolina beating on the doors of their senators to oppose” Trump’s Supreme Court pick, Aron said. “There’s a likelihood that Americans will rise up and say no.”
Republicans control 53 Senate seats, meaning Democrats would need four GOP defections to stop a Trump nominee if their hold their own ranks.
Democrats argue Kavanaugh’s controversial confirmation vote helped them pick up more seats in the House during the 2018 midterms, while Republicans say the fight helped them get out the vote in the Indiana and Missouri, which resulted in Senate GOP wins.
“What we’ve seen is a more engaged, revved up base on the progressive side about the court. I think the Kavanaugh fight that. I think subsequent really atrocious lower-court nominees did that,” said Baker, the executive vice president of People for the American Way.
An online poll sponsored by progressive groups and conducted in June among likely voters in 10 battle ground states found that 58 percent of Democrats and 50 percent of Republicans said “the kinds of judges that Senate candidates would confirm to [the Supreme Court] and other federal courts” would be very important in deciding their votes on Election Day.
“We’ve got polling that suggests the salience of this for progressives is on the upswing,” Baker said. “I think the electorate is engaged on this issue as an electoral issue in ways that it hasn’t been before, which would make this fight even more, I think, powerful.”