Since the founding of our republic, over 100 Supreme Court justices have been nominated to the federal bench, served time on the Court, and departed their post through death or retirement. Yet the recent passing of Supreme Court Justice Ruth Bader Ginsburg was different. Not only because she was a legal giant, despite her small stature, best known for her unapologetic advocacy for women’s rights. Not only because she was only the second woman ever to serve on the Supreme Court. Her death is also consequential because of the political battle it just set in motion. It may not seem possible, but the stakes of the presidential election just got higher.

When a Justice retires or dies in office, it creates a vacancy on the Supreme Court. It is the president’s job to nominate a replacement, and the Senate’s job to decide whether or not to confirm that nominee. With only a few weeks until the 2020 presidential election, our government faces a political dilemma: should the president nominate a new justice? 

Legally, there is nothing stopping the president and Senate from doing so. But here’s the rub: legal power is one thing. Public opinion is another. Back in 2016, when Justice Antonin Scalia died in office, the Republican-controlled Senate refused to hold a confirmation vote on Democratic President Barack Obama’s nominee to succeed him. At the time, Senate leaders argued that Supreme Court vacancies should not be filled during election years. Instead, they reasoned, the public should have a chance to weigh in on the process by picking the next president who, in turn, would nominate a judge to fill the opening. Interestingly, on her deathbed, Ginsburg echoed their sentiments: “My most fervent wish is that I will not be replaced until a new president is installed.”

Despite past rhetoric, Mitch McConnell, the Republican Leader in the Senate, says he intends to consider a nominee put forward by President Donald Trump this fall, despite the fact that Ginsburg’s death falls much closer to Election Day in 2020 (about six weeks) than Scalia’s death did in 2016 (around nine months). McConnell’s position is that this time is different because, unlike 2016, the Republican Party controls both the White House and the Senate in 2020, and that the voters have made it clear in recent elections that they want the Republican Party to pick federal judges.

Democrats are outraged. They consider McConnell’s current position to be severely at odds with his attitude in 2016. Yet it is not just perceived hypocrisy that has them worried. Ginsburg was a reliably liberal justice in terms of her voting record. There are only three other liberal justices currently on the Supreme Court. The other five justices are generally conservative in their votes. That means that before Ginsburg’s death, liberals were outnumbered five-to-four. If Trump appoints conservative judge to fill the vacancy—which he surely will—the result would be a six-to-three majority for conservatives. That would make it extremely difficult for the liberal wing of the Supreme Court to ever prevail in cases. They would need at least two conservatives to join them. That is not likely to happen very often, especially on the most controversial cases.

Will a new Justice be appointed this fall? We’re not sure yet, but the safe bet is that it will happen. McConnell is keen on filling the post, and he has the power to do so. However, not all Republicans in the Senate are equally committed. For example, Senators Lisa Murkowski of Alaska and Susan Collins of Maine have already said they oppose the Senate taking action on a Supreme Court vacancy right now, though they have not actually pledged to vote against a nominee if it does. In addition, Senators running for re-election right now in tight races may face pressure from voters to either support or oppose a pre-election confirmation process. It may even be the case—though it is unlikely—that Trump wants to nominate a judge now but hold off on a confirmation vote until after November 3rd in the hopes that doing so mobilizes conservative voters to show up on Election Day.

Although it is too soon to tell exactly when the next Supreme Court Justice will be confirmed, the implications of this vacancy are enormous. Not only will it shape the political direction of the Supreme Court for years to come, but it could prompt significant retaliatory action by Democrats if it is filled in 2020. For instance, if—and this is a big if—a Trump appointee is confirmed to the Court this fall but Democrats win back the Senate along with the White House in the November elections, they may well consider drastic measures in 2021 – like granting Washingon, D.C. statehood or increasing the size of the Supreme Court altogether. 

Stay tuned to this incredibly important story. In the meantime, check out Dr. Monica Lineberger’s article profiling the life and accomplishments of the woman known as the “Notorious RBG.”

-Assistant Professor of Political Science Eric Loepp