The Memo: Court battle explodes across tense election landscape

A new, incendiary ingredient has been added to the explosive political atmosphere as Election Day looms.

The death on Friday of 87-year-old Justice Ruth Bader Ginsburg sparks an instant and ferocious fight over the Supreme Court. 

Ginsburg was the de facto leader of the court’s four-member liberal bloc and an icon to progressives. Her death clears the way for President Trump to nominate a successor in the final days of his first term.

Trump could lock a conservative majority in place on the court for a generation. The effect on some of the most divisive issues in American life, from abortion to corporate power to race relations, would be profound.

Democrats and liberal activists will strain every sinew to thwart him.

The political calculations around replacing Ginsburg are fraught.

Trump could proceed as quickly as possible in naming a successor, aiming for a Senate confirmation vote before Election Day on Nov. 3.

There is one big potential reward to that approach for the president — and a number of dangers.

The upside for Trump is that putting a third conservative justice on the court would demonstrate beyond doubt that he has delivered on one of his chief promises to social conservatives. 

He has already put two justices on the high court — Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. Evangelicals who backed Trump four years ago, despite misgivings over his tumultuous private life, would feel richly rewarded if he added a third conservative, creating a 6-3 majority.

But it’s not quite as simple as that. 

Trump might gain even more electoral leverage if he held off from an instant nomination — or named his choice but allowed the Senate confirmation process to play out after Election Day.

Under this theory, he would be raising the stakes for his own reelection, dangling the prize of a third conservative justice before his voters. The prize would be guaranteed only if they came out in sufficient numbers to vanquish Trump’s Democratic opponent, Joe Biden.

There is a second advantage to the delayed approach: It spares Republican senators facing tough reelection fights from taking a hard vote before Nov. 3.

Such concerns are particularly relevant to Sens. Susan Collins (Maine) and Cory Gardner (Colo.), who are among the most endangered GOP incumbents. Sens. Thom Tillis (R-N.C.) and Joni Ernst (R-Iowa) would also have their political lives complicated by a vote on a Supreme Court nominee.

Republicans can afford only three defections on any Senate confirmation vote, assuming Democrats march in lockstep against any Trump nominee. At least two GOP senators who do not face reelection this year, Lisa Murkowski (Alaska) and Mitt Romney (Utah), could also buck the party line.

Murkowski has previously stated she would not want to confirm a Supreme Court justice in the immediate run-up to the presidential election. She cited her own party’s blockade of then-President Obama’s nominee, Merrick Garland, for much of 2016, following the death of Justice Antonin Scalia.

At that time, Senate Majority Leader Mitch McConnell (R-Ky.) argued that “the American people should have a voice,” via the imminent election, on any new justice. Trump won the election, and Garland never received a vote.

In a statement about an hour after Ginsburg’s death became public, McConnell indicated he would move ahead with any Trump nomination. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell pledged.

The wording left leeway for a vote that would be held after the election but before the new Senate is sworn in. 

Such a move would provoke Democratic wrath, however — especially if Trump loses the election. In that scenario, “lame duck” GOP senators would be handing an enduring legacy to a defeated president on his way out the door.

If that happens, all bets are off. 

Some Democrats, including former Hillary Clinton aide Brian Fallon, suggested on social media in the hours after Ginsburg’s death that their party should add new seats to the Supreme Court in such a situation. But that, in turn, would guarantee a furious counterreaction from conservatives, who would be outraged over an effort to pack the court.

Things have not reached that stage yet. But the battle lines are forming.

The Heritage Foundation, an influential conservative think tank, released a statement Friday calling for “the swift nomination and confirmation of a new justice.” 

On the other side, former Obama aide Tommy Vietor reported a huge influx of donations to a fund set up via Crooked Media to support Democratic Senate candidates. According to one Vietor tweet, almost $6 million surged into the fund between 5:30 p.m. Friday and 1:30 a.m. Saturday.

Obama himself released a statement close to midnight that paid tribute to Ginsburg before noting that the GOP blockade of Garland four years ago “invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.”

Obama added, “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.”

The weeks ahead will ratchet up a political temperature that is already close to boiling point.

The most polarizing president of modern times is about to either win a second term or be ejected from office. 

The election will take place against the backdrop of a once-in-a-century pandemic that has claimed roughly 200,000 lives. The nation is beset by economic challenges and roiled by racial tensions.

Now, a pitched battle between polarized political tribes over the high court is underway. 

There are choppy waters ahead.

The Memo is a reported column by Niall Stanage, primarily focused on Donald Trump’s presidency.