By Philip Rucker, Matt Viser, Sean Sullivan and Josh Dawsey
Washington – An already chaotic and corrosive presidential campaign was jolted anew Friday night by the death of Justice Ruth Bader Ginsburg, as a sudden vacancy on the Supreme Court just 46 days before the election immediately galvanized both political parties.
The impending fight for the Supreme Court thrusts issues of civil rights, abortion rights and health care to the forefront of a campaign that had been centered on the coronavirus pandemic, the economy and race relations, and it could boost voter enthusiasm and turnout numbers.
Democratic and Republican leaders assembled for all-out political war. Despite Ginsburg’s dying wish that her successor not be determined until after the election, White House officials said President Donald Trump is preparing to nominate a replacement in the coming days. And Senate Majority Leader Mitch McConnell, R-Ky., said that nominee would receive a vote in the Republican-controlled Senate – a departure from McConnell’s refusal to consider a nominee chosen by then-president Barack Obama before the 2016 election.
“President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell said in a statement.
Democratic presidential nominee Joe Biden warned the Senate not to hold an election-year confirmation vote to fill Ginsburg’s seat.
“Tonight and in the coming days we should focus on the loss of the justice and her enduring legacy. But there is no doubt – let me be clear – that the voters should pick the president and the president should pick the justice for the Senate to consider,” he told reporters in a hastily arranged appearance late Friday.
The rare opportunity to replace a liberal stalwart and feminist icon with a conservative and cement the court’s shift to the right likely will motivate Republicans more than any other issue and help further unite the right behind Trump and the party’s vulnerable Senate candidates, according to GOP strategists.
Amy Coney Barrett, a federal judge on the U.S. Court of Appeals for the Seventh Circuit who has a strong following among social conservatives, is considered a favorite to be nominated by Trump, according to three advisers to the president.
Ginsburg’s death promises to be a catalyst for Democrats, too, who are poised to mobilize to elect Biden as president and replace the late justice with a liberal who would protect a generation of social measures – from same-sex marriage to the Affordable Care Act and the Deferred Action for Childhood Arrivals program for undocumented immigrants known as Dreamers.
“The polarization in the country was already a 12 on a one-to-10 scale. It was already off the charts. This is going to push it up to 15,” said Neil Newhouse, a longtime Republican pollster. “This energizes both liberals and conservatives, it ratchets up the intensity, and it puts a focus on what’s at stake in this election.”
David Axelrod, who served as the top political strategist to Obama, concurred.
“This is another log in an already roaring fire,” Axelrod said. “This is going to further intensify feelings on both sides. For Trump, there has been some softening among evangelicals in some of the polling. He may see this as a way to fire them up again.”
Trump has long considered judicial appointments as the glue between him and his evangelical base. In the 2016 campaign, he released a list of possible Supreme Court picks as a way to prove his allegiance to social conservatives. And since taking office, he has nominated a record number of judges to the federal courts, including two Supreme Court justices, Neil Gorsuch and Brett Kavanaugh.
Earlier this month, Trump updated his list of Supreme Court contenders as a way to motivate evangelicals in the run up to the election.
Rallying supporters Friday night in Bemidji, Minn. – where he delivered a lengthy and largely off-the-cuff speech without apparent knowledge of Ginsburg’s passing – Trump brought up judicial appointments.
“The Supreme Court is so important,” Trump said. “The next president will get one, two, three or four,” he added. “I had two.”
After leaving the stage, Trump learned of the justice’s death, and told reporters: “She just died? Wow. I didn’t know that.”
As Elton John’s “Tiny Dancer,” a Trump rally staple, played in the background, the president added, “You’re telling me now for the first time. She led an amazing life. What else can you say? She was an amazing woman, whether you agreed or not, she was an amazing woman who led an amazing life. I’m actually sad to hear that. I’m sad to hear that. Thank you very much.”
Some in Trump’s political orbit were notably enthusiastic about the potential impact of Ginsburg’s death on the contours of the campaign. One former White House official, reflecting an emerging consensus in Trump world, said, “This is certainly a catalyzing event that needed to happen in this moment.”
This official, who spoke on the condition of anonymity to candidly discuss the politics of the moment so soon after Ginsburg’s passing, added, “This is an animating issue for the entire right. It unifies everybody from Mitt Romney to the most hardcore MAGA Trump person out there at a time when Trump needed that. It will give something to fight for over the next 45 days or so that could potentially remind people, ‘OK, this is why I voted for Trump, and this is why even if he makes me crazy sometimes I’ve got to stick with him.’ “
For Trump – whom polls show has been trailing Biden nationally and in many battleground states for months now, in part because of overwhelming disapproval of his management of the pandemic – the Supreme Court vacancy offers the opportunity to reframe the race away from the coronavirus.
“It helps Trump and it helps Republican Senate candidates,” said Dan Eberhart, a Republican donor and fundraiser. “We are not running solely on the covid response and the economy anymore. This resets the race.”
The court vacancy has implications for Senate candidates as well, most especially a handful of Republican incumbents in danger of losing their seats. In a message to Republican senators Friday night, McConnell urged his colleagues to “keep your powder dry” and to refrain from commenting definitively on whether they would agree to vote on a Trump nominee now or wait until after the election.
“Over the coming days, we are all going to come under tremendous pressure from the press to announce how we will handle the coming nomination,” McConnell said. “For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry. This is not the time to prematurely lock yourselves into a position you may later regret.”
Neera Tanden, the president of the left-leaning Center for American Progress, predicted that any Republican efforts to jam through a Trump nominee before the election would hurt Republican candidates with voters.
“Independents will find this disgusting,” Tanden said. “People are voting today. The American people will recoil in disgust.”
Sen. Richard Blumenthal, D-Conn., a Biden supporter and member of the Senate Judiciary Committee, also warned that Republicans would pay a price at the ballot box.
“It will be an ultimate insult to the rule of law and an offense to our constitutional principles to make the court a political football,” Blumenthal said in an interview. “The American people will judge any Republican who votes to fill it before the election in this politically driven, reckless and irresponsible way.”
On the left, Ginsburg’s death was met with a swift outcry from liberal activists who demanded that Democrats rally behind the idea of expanding the Supreme Court, particularly if Republicans seek to fill her seat before the end of this Congress. During the Democratic presidential primaries, Biden came out squarely against the idea, known as “packing the court.”
“I would not get into court packing. We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all,” Biden said at a debate last October in Westerville, Ohio.
But Ginsburg’s death could apply renewed pressure on Biden to embrace such calls, as he seeks to cement his support from more moderate voters, who have been cooler to the idea. If McConnell fills the vacancy this year, Sen. Edward Markey, D-Mass., wrote on Twitter, “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
Biden has vowed to nominate a Black woman to the Supreme Court, but his campaign has repeatedly declined to provide a list of those under consideration.
“One thing I hesitate to do is follow anything the president does at all, because he usually does it all wrong,” Biden said during a news conference on June 30. “We are putting together a list of a group of African American women who are qualified and have the experience to be in the court. I am not going to release that until we go further down the line in vetting them, as well.”
Various groups have expressed some frustration that Biden has not done more to motivate voters by using a list or talking more about the Supreme Court and the importance of filling vacancies – a topic that Biden, a former chairman of the Senate Judiciary Committee, should know well.
Biden also has expressed mixed views of when and how vacancies should be filled. During a Senate floor speech in June 1992 he argued that they should not be filled in the heat of a presidential campaign.
“Once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over,” Biden said at the time. “Otherwise, it seems to me, we will be in deep trouble as an institution.”
After clips of the speech circulated in February 2016, when the Obama administration wanted to fill a vacancy when Justice Antonin Scalia died, Biden clarified his position and said the former speech was taken out of context.
“Some critics say that one excerpt of my speech is evidence that I oppose filling a Supreme Court vacancy in an election year,” he said in a statement. “This is not an accurate description of my views on the subject.”
Instead, Biden said, the Senate and the White House should overcome partisan differences to fill a vacancy. “That remains my position today,” he said.