On 26 September 2020, President Donald Trump announced his nomination of conservative judge Amy Coney Barrett for membership of the US Supreme Court to succeed the deceased liberal judge Ruth Bader Ginsburg, thus provoking a fierce battle in the Republican-majority Senate, in light of the strong opposition of Democrats to Trump’s nomination of a judge to fill the vacant position in the Court during the electoral process, considering that this right belongs to the winning president in the upcoming elections.
The escalating clash over the vacant seat on the Court adds a new dimension to the intensifying presidential race between the President who seeks to win a second presidential term and the Democratic candidate Joe Biden, just over a month before the presidential elections, even as the US continues to suffer from the Covid-19 pandemic, the increase in the number of deaths due to infection with the virus to exceed the marker of 200 thousand Americans, the worsening economic crisis, the growing number of unemployed people who are now estimated in the millions, in addition to the increasing partisan tensions.
The political and electoral debate is escalating over President Trump's nomination of conservative Judge Barrett to fill the vacant position on the Supreme Court prior to the presidential elections, considering that the Court is the highest US judicial authority, having the power to adjudicate constitutional and legislative disputes and social issues on which Americans are divided, such as abortion, immigrant rights, and the right to bear arms. The Court also has the final say on disputes related to the results of the presidential elections, as was the case with the 2000 presidential elections, which ended with the victory of the then Republican candidate George W. Bush.
Republican support for the assumption of the post
In contrast to the rule followed by the Republicans in the Senate during the 2016 presidential elections when they refused the appointment by former President Barack Obama of Judge Merrick Garland on the Supreme Court to succeed Judge Antonin Scalia after his death ten months before the date of the elections on the pretext of the need to wait for the results of the elections and for the winner to carry out the nomination, this time, the Republicans support the designation of Judge Barrett, who was nominated by the US President to fill the vacant position on the Court after Ginsburg’s death, and the approval of her appointment before 3 November 2020, because the Senate has ample time to finalise the judge’s approval process. The majority of the Republicans refused to postpone voting until after the elections as long as their party currently controls the White House and the Senate.
Republican Senator Lindsey Graham, the current Chairman of the Senate Judiciary Committee that will hold a hearing with Judge Barrett before she is approved, said in an interview with Fox News (which is close to the US President) that he was confident that there was enough Republican support to confirm Trump’s candidate before 3 November 2020, especially that the party has a majority in the Senate (53 seats) versus 47 for the Democratic Party. The President’s nominations to occupy higher positions, including his candidates for the Supreme Court, are approved by a simple majority (51 votes).
The chances are increasing that the Senate would approve the appointment of Judge Barrett to fill the vacant position on the Court after Ginsburg’s death in light of the support of most of the Senate’s Republican members, mainly Republican Senator Mitt Romney, one of President Trump’s most prominent critics and the only Republican in the Senate to have voted to remove the President from office in early 2020, announcing that he would not oppose the Senate’s vote on Trump’s Supreme Court nominee before the presidential election, despite the announcement by two Senate Republicans (Senators Susan Collins and Lisa Murkowski) that they oppose accepting Trump’s nomination of a judge to fill the vacant position on the US Supreme Court at this time. However, there does not seem to be others who are willing to stand in the way of the party’s highest priority.
The concerns and options of the Democrats
The relentless steps taken by the US President and his Republican Party to appoint a conservative judge who would serve for life on the Supreme Court prior to the presidential elections have caused panic among the Democrats because they cannot stop her appointment. That is why, headed by their candidate for the upcoming presidential elections, they criticise the initiation by the Senate’s Republican members of the procedures for approving Judge Barrett prior to the election date, having abandoned the grounds that ruled their position on President Obama’s nomination of a judge to fill a vacant position on the Court during the 2016 presidential elections. Minutes after President Trump’s announcement of his candidate for the position, Joe Biden called on the Senate to refrain from deciding on the appointment of Judge Barrett to the Supreme Court prior to the presidential elections, and before Americans choose their next president and congressmen.
Democrats are concerned that the approval by the Republican-majority Senate to appoint the conservative judge would tighten the control of the conservatives for a decade or more over the Supreme Court, which would have important implications for the social and constitutional issues it would consider, especially those that are supported by the Democrats and opposed by the conservative trend, such as the issue of women’s right to abortion, the Obama Care programme for healthcare, the issue of carrying weapons stipulated in the Constitution, and opposition to laws that impose restrictions thereon.
In response to the Republican move, the Speaker of the House of Representatives said during a television interview, "We have our options. We have arrows in our quiver that I am not about to discuss right now". Among those options is the House’s initiation of procedures to remove Attorney General William Barr (Minister of Justice), or seek to impeach Trump once again as a tactic to delay the Senate's support for Trump’s candidate for the Supreme Court.
Some Democrats have threatened with the option of increasing the number of the Court’s members (presently nine judges) in the future in retaliation, although their presidential candidate Joe Biden had previously rejected the idea of "court packing". Some US reports indicate that the leader of the Democratic minority in the Senate Chuck Schumer indicated during a communication with his fellow Democrats that he is willing to consider expanding the court.
The Supreme Court’s future tops the election campaign
In the wake of the death of liberal Judge Ruth Bader Ginsburg, the campaign team for Trump’s re-election placed the vacant Supreme Court position at the centre of the campaign. This was evidenced by the chants of the President’s supporters: "Fill That Seat" at a rally in the state of Ohio.
The issue of filling the vacant post at the stage of the presidential elections achieves two interests for the US president, the first being to shift the electoral debate away from Trump’s failure to manage many issues that top the agenda of the American voters, such as dealing with the coronavirus pandemic, the deterioration of the economic conditions, and the rise in unemployment rates to unprecedented levels. These affect Trump’s chances of winning a second presidential term, which was referred to by the Democratic candidate when he said that the President "never wants to talk about the issue at hand and he always tries to change the subject".
The second interest is to consolidate the votes of conservative voters who would see this election as an opportunity to increase the control of conservative judges over the Court, their number presently being five judges versus three liberal-minded judges after Ginsburg’s death, especially after Trump appointed two deeply conservative judges to the Supreme Court during his tenure, namely Neil Gorsuch and Brett Kavanaugh.
By focusing on the appointment of a new conservative judge to the Supreme Court, Trump may risk losing the votes of voters in key swing states for whom the Court issue is not on top of their electoral priorities in light of the increasing importance to them of the issues related to the direct threat of the Covid-19 pandemic and the slow economic recovery.
In response to President Trump’s efforts to appoint a conservative judge to the Court ahead of the elections in November 2020, progressive members of the Democratic Party call on candidate Biden to adopt in his campaign the introduction of reforms to the Supreme Court, including increasing the number of its judges. However, he has so far resisted embracing this major change. He is concerned that such proposals would exacerbate divisions within the US at a time when the country is experiencing an unprecedented state of polarisation, at least since the Civil War. Biden has won during the party primaries over the candidates who supported introducing major changes to the Court, including Pete Buttigieg who proposed increasing the number of court seats to 15 judges. This approach could lead the Democratic candidate to lose his party’s left wing which desperately wants to prevent Trump from granting the conservative trend a large majority in the Supreme Court. On the other hand, some Democrats, including Biden himself, argue that the Court issue is not the one that preoccupies working-class voters whom they try to reach and whose votes they seek to win in November 2020.
The death of the liberal judge Ruth Bader Ginsburg imposed the issue of the Supreme Court’s future on the raging race between the Republican and Democratic candidates. While Trump, who seeks to win a second term, focuses on the Court battle to consolidate the Republican Party and revitalise his base and conservatives to vote for him in November 2020, Biden wants the elections to be a referendum on the US President and his failure to control a serious epidemic that has killed 200,000 Americans, or to address health care issues.
The intensifying controversy over the future of the Supreme Court comes at a time when the Court is expected to resolve a dispute that is likely to be witnessed by the 2020 presidential elections, as had been the case in the 2000 elections, in case any of the candidates wins by a narrow margin, especially in light of President Trump’s failure to admit expressly that there would be a peaceful transfer of power in the event he loses the elections, and his repeated statements about the fraud that will be witnessed by the elections with the increase in mail-in voting due to the pandemic.
With the Republican Party controlling the majority in the Senate (53 seats) and the unlikelihood that four Senate Republicans would join the 47 Democrats to oppose the appointment of conservative Judge Amy Coney Barrett, it is expected that her assumption of the post would be approved after strong hearings prior to the presidential elections in November 2020, or before the winner is sworn in on 20 January 2021.
* Researcher in US Affair.
EPC | 20 Oct 2020
Mohamed Fawzi | 19 Oct 2020
Shereen Mohammed | 18 Oct 2020