WASHINGTON – A legal and political earthquake hit the nation’s capital precisely four years ago when Supreme Court Associate Justice Antonin Scalia died on a hunting trip in Texas. President Barack Obama was poised to nominate his successor and give the court its first liberal majority in decades.
It didn’t happen, of course.
Within hours of Scalia’s death on Feb. 13, 2016, Senate Majority Leader Mitch McConnell, R-Ky., vowed to keep the seat open until the presidential election in November. He made good on that pledge, and the vacancy remained for 14 months, until President Donald Trump filled it with Scalia acolyte Neil Gorsuch.
Fast forward to 2020.
If a vacancy were to occur this presidential election year – with the staying power of 86-year-old Associate Justice Ruth Bader Ginsburg, a four-time cancer survivor, a perpetual subject of speculation – Democrats and liberals will say it should remain open through the November election.
“It’s going to be very hard for Republicans to argue that it’s appropriate to consider a Trump nominee in 2020 with a straight face,” says Brian Fallon, executive director of the liberal advocacy group Demand Justice. “We’ll be ever closer to the election.”
But with both the White House and Senate in Republican hands, McConnell has said the 2016 precedent does not apply. He’s vowed to confirm as many federal judges as possible.
“My motto for the year is ‘leave no vacancy behind,'” McConnell told conservative radio talk show host Hugh Hewitt Tuesday.
Such a doomsday scenario for liberals could give conservatives a 6-3 hold on the high court – solidifying their majority, perhaps for decades to come.
McConnell’s reasoning works this way: Democrats would have blocked a Republican president’s nominee in 2016 if the tables were reversed, and they would confirm a Democratic president’s nominee now.
“They can whine about this all day long,” the Kentucky Republican said in September. “But under the Constitution, there is co-responsibility for appointments. The president makes the nomination, and the Senate confirms. We are partners in the personnel business, up to and including the U.S. Supreme Court.”
McConnell’s partisan muscle portends a ferocious battle this year if a seat falls vacant. Ginsburg, who turns 87 next month, has overcome colon, pancreatic and lung cancers in 1999, 2009, 2017 and 2018. The next oldest associate justice is 81-year-old Stephen Breyer, another member of the court’s liberal minority.
Conservatives who have thrilled at Trump’s high court selections of Gorsuch and Brett Kavanaugh, as well as the Senate’s confirmation of more than 150 lower court judges in three years, are thirsty for more.
“This issue is a really, really, really important one for the Republican base,” says Leonard Leo, an outside adviser to the White House on judicial nominations who is co-chairman of the conservative Federalist Society. “We have a sitting president. We’re not going to govern with both hands tied behind our back.”
The unexpected death of Scalia, 79, a larger-than-life jurist and leader of the high court’s conservative wing, set in motion a drama that consumed all three branches of government during the 2016 presidential campaign.
Obama offered up a compromise candidate, 63-year-old Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. McConnell refused even to hold a hearing. The court muddled through the second half of its term and most of its next one with eight justices.
It was but the latest in a decades-long battle over federal judgeships that come with life tenure and, as a result, can reshape the nation’s legal landscape over a four- or eight-year presidency. Three years earlier, Democrats who controlled the Senate changed its rules so that Obama could fill appeals court vacancies without the 60 votes needed to break Republican filibusters.
Then in 2017, Republicans did the same thing for Supreme Court vacancies, breaking a Democratic filibuster against Gorsuch by blowing up the rules. With Gorsuch and Kavanaugh, confirmed in 2018 by a 50-48 vote, the court is more solidly conservative than it has been in years.
In response, liberal advocacy groups have urged altering the court’s structure, either by adding seats or instituting term limits. But even Ginsburg opposes the “court-packing” proposals reminiscent of President Franklin Roosevelt’s failed efforts in the 1930s.
“If anything would make the court look partisan, it would be that – one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to,'” Ginsburg said last year.
While the president and Senate majority leader continue to focus on circuit and district court judges, Ginsburg’s age and health are what makes talk of potential Supreme Court vacancies relevant.
The leader of the court’s four liberals bounced back from colon cancer in 1999 and pancreatic cancer a decade later, and her twice-weekly workouts now are enshrined in a book authored by her trainer. But early last year, she missed two weeks of oral arguments while recovering from surgery to remove two malignant nodules from her left lung. Then later in the year, she required three weeks of radiation treatment for a cancerous tumor on her pancreas.
Upon her latest recovery, Ginsburg embarked on a series of public speaking engagements that would tire someone half her age. Her appearance Monday at Georgetown University Law Center was her fourth this month. She hosts a musical program at the Supreme Court Thursday; the following day, she presents the first-ever Justice Ruth Bader Ginsburg Woman of Leadership Award at the Library of Congress.
“We just get flooded with invitations,” she said at Georgetown Law. “I can be getting an award every day of the week.”
‘Tougher thing to pull off’
A Supreme Court confirmation battle in 2020 likely would echo the 2016 debate – in reverse.
Democrats would argue that the seat should remain vacant until the voters speak in November. Liberal groups would target vulnerable Republicans up for election in “purple” states, citing their support for McConnell’s roadblock four years ago as well as their Senate impeachment trial votes for Trump’s acquittal last week.
“A fight like this would energize progressives even more than it would energize the right,” says Marge Baker, executive vice president of the liberal advocacy group People for the American Way. “I think this is going to be a tougher thing for McConnell to pull off.”
Republicans would recount past statements by Joe Biden, now seeking the White House, and Chuck Schumer, now the Senate’s Democratic leader, to justify what McConnell did in 2016. They would say their control of both the White House and Senate now makes that precedent irrelevant.
“There’s no chance that Mitch McConnell is going to leave a vacancy on the table, and he shouldn’t,” says Mike Davis, who was nominations counsel for the Senate Judiciary Committee during Kavanaugh’s confirmation.
The only complication for Republicans might be the calendar. By Labor Day, it would be difficult to get through the normal confirmation process by Election Day. And if Trump fails to win re-election or Republicans lose their Senate majority, it would be hard to justify filling a vacancy in a lame-duck session.
That’s little solace to liberals who fear a more conservative Supreme Court, perhaps for generations to come.
“We take McConnell at his word on this,” says Nan Aron, president of the liberal Alliance for Justice. “We know he would do anything – he would go to the farthest end of the earth – to pack the Supreme Court.”