The State: of a SCOTUS Confirmation and the 2020 Election
Through a series of articles we call The State, the American Farm Bureau Federation’s Advocacy and Political Affairs team is providing analysis related to "the state of" various aspects of the 2020 campaign season, including the race for the White House and key elections around the country.
In news that sent shock waves for vastly different reasons to different segments of American society, the passing of Justice Ruth Bader Ginsburg will have an immediate impact on the 2020 presidential election by adding another unique element to a campaign that is anything but ordinary. The political battles of the next few months are about as consequential as American politics get.
First, we must praise the second woman confirmed to the Supreme Court of the United States. Known in the latter part of her life as RBG, Justice Ginsburg’s supporters considered her to be a progressive jurist, thoughtful and passionate about equality under the law. Former President Carter nominated Ginsburg to the United States Court of Appeals for the District of Columbia Circuit in 1980, where she served until former President Clinton nominated her to the Supreme Court in 1993; she was confirmed in the Senate by a 96-3 vote.
The Supreme Court nomination will occupy the Senate with a fight mostly over political ideology as the campaign frame will shift from the coronavirus pandemic with the resulting economic crash and social justice/law-and-order debate to the judicial branch vacancy.
Seeking to encourage his base as he did in 2016, a few weeks ago President Trump published a list of potential nominees to the Supreme Court. And shortly after news of Justice Ginsburg’s passing, Senate Majority Leader Mitch McConnell (R-Ky.) announced that the Senate would have confirmation hearings before the 2020 election.
The timing of the announcement to fill the seat is purely political. President Trump has every right to fill the vacancy during his tenure as president, which does not end until his replacement is inaugurated. Still, Trump quickly brushed aside the question of whether he should make an appointment immediately before a presidential election and is expected to do so by week’s end. Sure to come up on that front is McConnell’s declaration in 2016 that Supreme Court Justice Antonin Scalia’s passing in February that year was too close to the election for the Senate to act on then-President Obama’s nominee, Merrick Garland.
From now until Election Day there are 40-plus days of intense campaigning between candidates for president and the Senate, potential Supreme Court confirmation hearings in the Senate and other political maneuvers to be done. Following that, the vote on confirmation could be held during a post-election lame duck session.
The makeup of the Senate between now and Election Day ensures Democrats will not have an easy time preventing confirmation because there are 53 Republican senators, four of whom would need to oppose the nominee.
According to the Wall Street Journal, Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine have both announced that they would not support confirming a nominee to replace Ginsburg before Election Day. (Murkowski left open the possibility that she could vote to confirm Trump’s pick in the lame-duck period between the election and inauguration.)
Another factor to consider is the Senate election in Arizona. This is a special election to replace John McCain, who died in 2018. If Mark Kelly, the Democratic nominee, wins, he could take office as soon as Nov. 30, adding a reason for Senate Republicans to act quickly.
The implications on the campaign are unpredictable in the short-term. Replacing a Supreme Court Justice will be the predominant issue for president and the Senate. What is predictable is that both bases have been energized. Exactly how that energy is converted into action by the voters remains to be seen.
Cody Lyon is AFBF’s managing director of advocacy and political affairs.
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