Ruth Bader Ginsburg's death throws dramatic election into even more chaos

CNN's Anderson Cooper and David Gergen discuss Senate Majority Leader Mitch McConnell's comment that he will replace Justice Ruth Bader Ginsburg with Trump's nominee.

Posted: Sep 20, 2020 2:20 PM
Updated: Sep 20, 2020 2:20 PM

As America mourned the death of Supreme Court Justice Ruth Bader Ginsburg -- a brilliant trailblazer for women and an equal rights icon -- a fierce new political debate began unfolding Friday evening.

With just 45 days until the election, the battle over who will replace her and when that Senate vote will occur is already reshaping the stakes in more than a half-dozen closely fought Senate races, while galvanizing impassioned voters on both sides of the presidential campaign.

The death of a Supreme Court justice so close to the November election was all but certain to thrust America's culture wars back to the center of the political debate in a year dominated by the fallout from the coronavirus pandemic and the renewed push for racial justice following the death of George Floyd.

That battle has the ability to breathe new energy into the electorate -- activating conservative Republicans who have grown weary of President Donald Trump but view the election as a chance to shape the court, while also mobilizing millions of female voters who are already infuriated by Trump's degradation of women and would view his ability to nominate three Supreme Court justices in a single term as an assault on their values.

New battle lines

Senate Majority Leader Mitch McConnell immediately drew those partisan battle lines Friday night just over an hour after the announcement of Ginsburg's death, when he vowed that there will be a vote on Trump's yet-to-be-named nominee by the end of this year.

The Kentucky Republican, who is up for reelection against a fundraising powerhouse, faces the possibility that the GOP could lose control of the Senate and that Trump could lose the White House. The balance of power in the Senate is so narrow that McConnell can only afford to lose three Republican votes in his quest to get a Trump Supreme Court nominee confirmed.

"President Trump's nominee will receive a vote on the floor of the United States Senate," McConnell said in a statement. GOP aides separately told CNN that they are skeptical that there is enough time before Election Day on November 3 to vet, conduct background checks and set up the elaborate nomination and confirmation process that normally takes two to three months.

In a message to his GOP colleagues Friday evening, McConnell urged them to "keep your powder dry," according to a person who saw the note.

On Saturday morning, Trump tweeted that Republicans have an obligation to fill the seat without delay.

"@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!" Trump wrote.

Democratic nominee Joe Biden, who addressed Ginsburg's death after he stepped off a plane in Delaware Friday night, said that the decision on her replacement should wait until after the election.

He alluded to the precedent set by McConnell in 2016 when he refused to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia, even though then-President Barack Obama had nominated Merrick Garland for the seat in March of that year -- months before the presidential election.

"Let me be clear that the voters should pick the President and the President should pick the justice for the Senate to consider," Biden said, calling Ginsburg a "fierce and unflinching" advocate for the civil, legal rights of all Americans.

"This was the position of the Republican Senate took in 2016 when there were almost 10 months to go before the election. That's the position the United States Senate must take today, and the election's only 46 days off," the former vice president said.

Obama echoed that call in his own statement, saying Senate Republicans should adhere to the precedent they set four-and-half years ago when they refused to hold an up-or-down vote on Garland.

"A basic principle of the law -- and of everyday fairness -- is that we apply rules with consistency, and not based on what's convenient or advantageous in the moment," Obama said.

Other Democrats were quick to criticize McConnell's statement as the height of hypocrisy given that the Senate majority leader sat on Obama's nomination of Garland during all of 2016, leading many Democratic voters to say their party was robbed of a seat on the Supreme Court as McConnell argued that the "American people should have a say in the court's direction."

Beyond Democratic outrage, McConnell is facing many logistical hurdles as he seeks to get a successor named to the court by the end of the year.

Ginsburg — who was praised as a "brilliant and successful litigator" who left a "towering legacy" even by the likes of a hard partisan like Republican Attorney General William Barr — made her own wishes known by dictating a statement to her granddaughter Clara Spera.

"My most fervent wish is that I will not be replaced until a new president is installed," she told her granddaughter days before her death, according to National Public Radio.

GOP senators in a tight spot

Several Republican senators facing tough reelection campaigns are stuck in a politically daunting place. Defying Ginsburg's wishes could erode whatever lasting support they have among moderates and independents, while defying McConnell and Trump could depress base turnout that they need to win.

Among them are Sens. Susan Collins of Maine, Cory Gardner of Colorado, Martha McSally of Arizona, Thom Tillis of North Carolina and Lindsey Graham of South Carolina, who is in an unexpectedly close reelection battle and is also chairman of the Judiciary Committee.

McSally tweeted on Friday night that "this US Senate should vote on President Trump's nominee for the US Supreme Court."

But Collins told The New York Times' Jonathan Martin in an interview earlier this month that she would not seat a Supreme Court justice in October.

"I think that's too close, I really do," Collins told Martin, adding that she would also not be comfortable seating a justice during the lame duck session of Congress if Democrats win the White House.

Tillis, who serves on the Senate Judiciary Committee, said in a statement Saturday that he would support Trump's eventual nominee.

In an interview before Ginsburg's death on Friday with Alaska Public Media, Republican Sen. Lisa Murkowski, who broke with Trump and her party by voting against moving ahead with Supreme Court Justice Brett Kavanaugh's confirmation to the Supreme Court, also said she would not agree to confirm a nominee before Election Day.

"I would not vote to confirm a Supreme Court nominee. We are 50 some days away from an election," the Alaska Republican, who does not face voters this year, told reporter Casey Grove of Alaska Public Media.

In October of 2018, before he was being outraised by a Democratic opponent who's now even with him in some public polling, Graham told reporters that if a Supreme Court opening occurred in the last year of Trump's term and the primary process had started, "We'll wait to the next election. And I've got a pretty good chance of being the Judiciary (Chairman). Hold the tape."

But he has since backtracked. "I'd like to fill a vacancy. But we'd have to see. I don't know how practical that would be," Graham told CNN in July. "Let's see what the market would bear."

In all of those competitive Senate races, Ginsburg's death is likely to re-inflame debates over candidates' positions on key issues facing the Supreme Court including abortion, health care, gay rights, voting rights and immigration.

Political groups on both sides are already gearing up. The progressive group "Demand Justice" sent out a fundraising solicitation Friday night calling on supporters to "protect Ruth Bader Ginsburg's legacy" while stating that "this is a fight that will set the future of the Supreme Court for decades to come." The group plans to spend $10 million on an ad campaign arguing Ginsburg's vacancy shouldn't be filled until after inauguration.

An unexpected political boon for Trump

Ginsburg led the court's liberal wing, which had a 5-4 conservative majority before her death. She was a progressive champion who continued to fight for her liberal beliefs on the court even during five rounds of cancer. During an appearance at the Yale Club in New York in 2019, she said she preferred to keep working even as she fought cancer: "I found each time that when I'm active, I'm much better than if I'm just lying about and feeling sorry for myself."

But by taking some of the focus off of Trump's missteps, her death could reframe an election year debate that has focused primarily on the coronavirus pandemic and the resulting economic crash that cast millions of Americans from their jobs.

The ability to nominate someone who would steer the Supreme Court in a more conservative direction is an unexpected political boon for Trump at a time when he is trailing Biden in national and many swing state polls. In the view of many on the right, his record getting conservative judges confirmed is the highlight of his chaotic presidency. A renewed fight over the balance of the court could redeem Trump in the eyes of voters who were starting to peel away in the midst of a mismanaged pandemic.

View Trump and Biden head-to-head polling

Keenly aware of the importance of his record on judicial nominees, Trump released his list of 20 possible conservative nominees to the Supreme Court earlier this month in an effort to generate more enthusiasm within his base. At that time, Trump had appointed 205 federal judges, including two Supreme Court nominees, according to a spokeswoman for the Senate Judiciary Committee.

Trump included the names of three Republican senators on that list -- Ted Cruz of Texas, Tom Cotton of Arkansas and Josh Hawley of Missouri.

"Apart from matters of war and peace, the nomination of a Supreme Court justice is the most important decision an American president can make," he said during the event.

Trump was on stage at a Minnesota rally, stoking racist fears about refugees, when Ginsburg's death was announced. He spoke for 114 minutes without mentioning her and only learned about her passing from reporters as headed back to Air Force One.

In a statement, Trump said that she showed "that one can disagree without being disagreeable toward one's colleagues of different points of view" -- a trait completely at odds with his own political tactics.

Trump spoke positively about Ginsburg late Friday night, but a source close to the President told CNN's Jim Acosta that Trump has been eager to nominate a replacement for the liberal justice, who was the second woman named to the Supreme Court. During her life, Ginsburg did not hide her distain for the President, telling CNN's Joan Biskupic that he was "a faker" who had "gotten away with not turning over his tax returns."

Trump said Ginsburg had "embarrassed all by making very dumb political statements about me" and called on her to resign.

Ginsburg was at the forefront of many fiery political debates, and the debate over how her legacy should be honored by the current administration and the party in power in the Senate may end up being among the most combative.

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