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Ginsburg's Death Scrambles 2020 Election Politics

The death of a Supreme Court icon makes an unsettled election even more fraught.
Scott Shafer
06:56
Betty Doerr brought her Justice Ruth Bader Ginsburg figurine that she bought at Cliff's Variety to the candlelit vigil in Ginsburg's honor on Sept. 18, 2020.  (Beth LaBerge/KQED)

Replacing Supreme Court Justice Ruth Bader Ginsburg, a liberal icon, with a staunchly conservative justice has long been the wish of Republicans, including President Trump.

But the death of Ginsburg on Friday also creates a sudden and unexpected minefield for Republicans in the U.S. Senate, who are at risk of losing their narrow majority in the November election.

Democrats in general, and in California in particular, also have a lot riding on the outcome of what is sure to be an epic political battle with implications that could last decades. And it’s unclear who will benefit from the new campaign landscape.

Former California Democratic Sen. Barbara Boxer believes Republicans would be making a mistake to muscle through a nominee so close to the presidential election.

“This election already is insane and fraught with foreign interference and voter suppression and everything, and now it looks like my former Republican colleagues are going to push ahead and be hypocrites and push an appointment forward,” Boxer said. “And I think that will throw a torch into the Senate, literally. And I think it will change everything.”

Boxer, along with Sen. Dianne Feinstein, D-California, was elected in the 1992 “Year of the Woman” following the contentious confirmation of Justice Clarence Thomas to the Supreme Court.

She was also there in 2016 when Republicans blocked a vote on former President Barack Obama’s choice to fill a seat left vacant after the death of Justice Antonin Scalia, saying it was too close to the election — which at that point was more than eight months away.

“And they’re just being hypocrites and double dealers and everything else. You cannot do that. You cannot just change every other day because it suits your needs,” Boxer said.

On the other hand, Ginsburg’s death allows Trump to do something he desperately needs: change the subject. Every day he defends his handling of the pandemic or denies allegations published in books by former disgruntled former is a day he’s losing.

Trump and Senate Majority Leader Mitch McConnell, R-Kentucky, are vowing to vote on a Republican nominee in the coming weeks, even though the election is just over 40 days away. The timing of any hearings is not yet clear.

“If he does it before the election, it’s going to put his vulnerable senators in a very bad place,” Boxer said. But she added, “Either way, if he does it after the election, I think the Republican Party will be dead and buried.”

But it’s not really clear what a rushed confirmation would mean politically. And Democrats also have a lot riding on how the White House and McConnell proceed.

As a member of the Senate Judiciary Committee, Sen. Kamala Harris, D-California, could be pressed to leave the campaign trail if confirmation hearings are set before the election. This would give Harris, known for her sharp and politically polarizing questioning of Trump nominees, a high-profile role, but not one she would necessarily want or benefit from.

A confirmation battle could be a good organizing tool for Democrats. But if it consumes progressive interest groups’ time and money, it could also distract from the larger issue of getting Democrats out to vote for the Biden-Harris ticket and for the Democratic Senate candidates in states they’re hoping to flip.

Politics aside, states like California have a lot riding on who replaces Ginsburg. Stanford Law School professor Pamela Karlan said issues involving consumer rights, for example, could more easily be wiped away by a more conservative court.

“California has a lot of progressive laws and there are conservatives who would like to challenge a lot of those laws,” Karlan said. “And Ruth Bader Ginsburg was somebody who was not going to find preemption of state consumer rights issues or preemption of a state’s right to go to court.”

Karlan also said that issues involving immigration and immigrants’ rights, so important in a state like California, would also be at higher risk if the court shifts further to the right.

Women’s groups worry about the court striking down Roe v. Wade, the landmark Supreme Court ruling establishing a woman’s right to an abortion and preventing states from banning the procedure outright. The future of LGBT rights, the fate of the Affordable Care Act and even potential legal issues emanating from the November election could also be determined by a sharply more conservative court.

UC Berkeley Law Professor Amanda Tyler clerked for Ginsburg and is writing a book based on an on-stage conversation with her last fall. Asked what kind of person she thought Ginsburg would want as a replacement, Tyler initially said, “It’s impossible to fill her shoes. She was a legend.”

But, Tyler added, “if she were able to speak to it, she would say probably that she would want somebody who believes that the Constitution was a document for all of us, that the story of our Constitution is a story of being ever more welcoming and inclusive. And that we have to constantly be vigilant about working to ensure that we are building a more perfect union.”

Tyler went on to say she was concerned about how a bitter confirmation process would affect the court.

“I think it’s important for the institution that is the Supreme Court that it not be the central issue in this election,” Tyler said. “I realize that with her passing, that is in some respects almost inevitable, that it will be a major issue. But I think that (Ginsburg), like all the justices, would prefer to keep the court as insulated as possible from politics. Again, that is also not entirely possible.”

Democratic presidential nominee Joe Biden echoed many Democrats Friday, including Harris, his running mate, and Feinstein, in saying no one should be nominated before the presidential inauguration in January. Biden chaired the Senate Judiciary Committee during the contentious confirmation hearings for Clarence Thomas.

In a tweet, President Trump, who recently released a list of potential court nominees he would choose from, pressured Biden to say who he would name if he won the presidency.

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Karlan, the Stanford law professor, thinks that’s a bad idea.

“It would be a mistake for him to say who he would nominate before (the election),” Karlan said. “You know, one of the things that’s really important, and we saw this with the Brett Kavanaugh hearings, you need to do some vetting, some serious vetting before you put somebody up,” she noted.

“And, you know, the FBI is not under Joe Biden’s control right now. It’s under Donald Trump’s control. So, he can’t do the kind of vetting that a president would want to do.”

Karlan also said that Biden’s nomination decision would be determined in part by whether Democrats control the Senate in 2021.

Boxer agrees.

“If I were advising Joe on this, and believe me, he has plenty of people who are, I would say, ‘Describe the type of human being you’d put on,’ ” she said. “And you know what? It should be someone like Ruth Bader Ginsburg who had a passion for justice, a passion for equality.”

Ginsburg’s death has roiled an already high-anxiety campaign season, leaving uncertain what impact it will have on the election.

Although Ginsburg’s death is a huge loss for liberals, Boxer sees the vacancy as ultimately being an advantage for Democrats.

“If the young voters, who really had an affection for Ruth and really understand that nothing’s happening (on things like) climate change, if they get themselves up and say 60% or 55% of them vote, I think they’ll be guaranteeing that we will have Joe Biden as president. I do,” Boxer said.

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