Debate about high court vacancy heats up US election climate
By Laura Barros
President Donald J. Trump speaks to reporters as he departs the White House in Washington on 22 September 2020, for a campaign rally in Pennsylvania. EFE/EPA/SARAH SILBIGER / POOL
By Laura Barros
Washington, Sep 22 (efe-epa).- Debate surrounding the replacement for the late Supreme Court Justice Ruth Bader Ginsburg has been heating up the electoral climate in the United States, which to date had been dominated by the coronavirus and Democratic criticism of President Donald Trump's management of the pandemic, which has now taken more than 200,000 lives in the US.
Americans will go to the polls on Nov. 3 to elect the president, the entire House of Representatives and a third of the Senate, and amid the already-heated campaign environment this new issue is now creating increased controversy given that the Senate's decision whether or not to confirm Trump's nominee will potentially dramatically affect the conservative-liberal balance on the high court for decades to come, considering the fact that all seats are lifetime appointments.
Trump on Tuesday revealed that on Saturday he will nominate his pick for the high court vacancy, refusing to reveal the name of that person although Judge Amy Coney Barrett is widely deemed to be the favorite and the president met with her on Monday.
Also apparently among the top contenders for the SC spot is Cuban-American Judge Barbara Lagoa, Allison Jones Rushing, federal Judge Joan Larsen and White House attorney Kate Todd.
"I will be announcing my Supreme Court Nominee on Saturday, at the White House!" tweeted Trump on Tuesday, adding that the precise timing of the announcement will be announced later.
Since Monday, Trump has been saying that he is planning to make the announcement on Friday or Saturday and that he wanted a woman to replace Ginsburg, the progressive legal icon who died last Friday at age 87 after a long battle with cancer.
Trump's decision to delay the announcement until the weekend further reduces the amount of time available for the Senate to confirm any pick before the Nov. 3 election.
White House spokesperson Kayleigh McEnany on Tuesday defended the idea that the president could nominate Ginsburg's replacement before the election, an issue that has sharply divided political and legal opinion around the country and which led activists to protest on Monday morning before the home of GOP Sen. Lindsey Graham, the chairman of the Senate Judiciary Committee and who in 2016 opposed the high court nomination of then-President Barack Obama.
"There's nothing in the Constitution that says the president stops being the president in an election year," said McEnany during a press conference.
Citing the US Constitution, she argued that the president can nominate a person to the high court when a vacancy occurs, without regard to when in the presidential term this takes place.
She added that Trump has already named two conservative justices to the Supreme Court - that is, Neil Gorsuch and Brent Kavanaugh - and now he will nominate a third.
Those who oppose Trump making such a move argue - as the Republicans did against Obama's high court pick - that whoever is elected president in the upcoming election should have the option to name the new justice, although the winner, whether that's Trump gaining a second term or Democratic candidate Joe Biden prevailing at the polls, will not take office until January along with the newly-elected Congress.
The Senate, which has a 53-47 conservative majority, has become the battleground in the matter, as on other occasions.
In 2016, when Republicans were in the majority in the Senate but Obama, a Democrat, was president, Senate Majority Leader Mitch McConnell blocked any vote on Obama's SC pick, arguing that he was perfectly within his rights to do so.
Besides Graham and McConnell, Sen. Ted Cruz also opposed Obama's being allowed to name a high court justice four years ago.
This time around, the Republicans still hold a Senate majority but there is a Republican in the White House and thus McConnell and other GOP lawmakers have reversed course and are now pushing for Trump to nominate another conservative to the court, whom they look poised to confirm quickly.
The high court had had a 5-4 conservative majority before Ginsburg's passing, but if Trump manages to get another conservative onto the bench there will be an almost unassailable 6-3 conservative majority, which could well color the court's rulings on a wide variety of consequential cases for many decades.
Apart from one exception, "no Senate has failed to confirm a nominee in the circumstances that face us now," said McConnell, referring to the circumstance where the president and Senate majority are of the same party. "The historical precedent is overwhelming and it runs in one direction. If our Democratic colleagues want to claim they are outraged, they can only be outraged at the plain facts of American history," he added.
McConnell went on to vow on his Twitter account that the Senate would vote on Trump's high court pick "this year."
Meanwhile, Senate Minority Leader Chuck Schumer responded on Twitter that his party will fight for Ginsburg's "legacy" and for the health of all Americans.
"200,000 Americans have died from COVID. But Sen. McConnell's put the Senate on "pause" for over 4 months. Now he wants to move heaven & earth to install a new Justice who could rip away Americans' health care in a pandemic. Dems are fighting for RBG's legacy and your health care," Schumer tweeted.
The senator was alluding to the much-criticized (by Democrats, at least) management of the pandemic by the Trump administration on the same day that the US surpassed the 200,000-death threshold from Covid-19.
Later, at a press conference, Schumer said that the American people don't want the Republicans to move forward with a confirmation, and they know that doing that is bad.
At a time when every Senate vote counts, GOP Sen. Mitt Romney, a critic of many of Trump's decisions and the target of much bile and humiliation from the president, surprised everyone with his decision to support the appointment of a new high court magistrate, saying that both the Constitution and "historical precedent" allow it.
"My decision regarding a Supreme Court nomination is not the result of a subjective test of 'fairness' which, like beauty, is in the eye of the beholder," Romney said.
"It is based on the immutable fairness of following the law, which in this case is the Constitution and precedent. The historical precedent of election year nominations is that the Senate generally does not confirm an opposing party's nominee but does confirm a nominee of its own," he added.
McEnany said on Tuesday that over the course of US history there had been a high court nominee on 20 occasions during an election year and on 19 of those occasions they occurred when the president and the Senate majority were of the same party, resulting in 17 confirmations, adding that precedent is on the side of the Republicans.
However, The Washington Post said that in the bipartisan era, which it says began with the inauguration of Abraham Lincoln in 1961, there have only been 13 cases in which a high court nomination has been made during a presidential election year, and on three of those occasions they occurred after the election.
Surveys have shown the polarization that exists on this issue but they also provide an indication of the concern about the new magistrate that has emerged in the minds of many voters.
A CNBC and Change Research poll released on Tuesday revealed that the majority of surveyed voters in six states that will be key in the November vote - Arizona, Florida, Michigan, North Carolina, Pennsylvania and Wisconsin - prefer to see the winner of the presidential election name the next high court justice.
In those states - which along with Georgia and Minnesota provide 127 of the 270 electoral votes needed to win in November - 52 percent of those surveyed said that Trump should not nominate a justice if he loses to Biden, while 43 percent say that he should.
On the national level, 57 percent of the public opposes a nomination by Trump if he loses the election, compared to 37 percent who support such a move, according to the results of surveys released by CNBC.