Thoughts on the passing of Ruth Bader Ginsburg

President Trump got it right last night when he called the late Justice Ginsburg an amazing woman with an amazing life. She is the foremost female the American legal professor has produced to date, and it’s unlikely that she will be surpassed any time soon.

Ginsburg was a fierce partisan and liberal ideologue. Yet, she is said to have forged and maintained a strong friendship with the late Justice Scalia. This speaks to the grace and character of both jurists.

I don’t know how Ginsburg’s passing and the ensuing battle to replace her will affect the election. My sense is that it will have little direct impact on the presidential election, where the battle lines are set.

The future of the Supreme Court is a big deal, of course. Indeed, there is no issue in the presidential race that is more important. But both sides are about equally passionate on the matter, it seems to me.

If there is an impact on the presidential election, it might come if/when the Supreme Court decides the outcome. Things were setting up for a 5-4 decision, with Chief Justice Roberts as the swing vote.

Now, the alignment might end up being 4-3-1 (with conservatives in the plurality). If so, Roberts would still be the key vote. He could join the strong conservatives in a 5-3 majority or join the liberals, making the vote 4-4. A tie would mean leaving in place whatever decision was reached below. Would Roberts want a president to take office by virtue of a deadlocked Supreme Court and a lower court ruling?

I should emphasize, however, that facts will matter if the case is before the Supreme Court. Both sides will probably need a decent case for the potential deadlock I have suggested to occur.

If there is a direct electoral effect from Ginsburg’s passing, it might occur in tight Senate races involving endangered incumbents like Susan Collins, Thom Tillis, and Cory Gardner. That effect could vary from race to race, and will depend, in part, on what the candidates say and/or promise regarding filling the vacancy.

As for having a vote before Election Day, that seems unlikely to me for logistical and political reasons. The calendar, in the context of an election, seems highly problematic.

Confirmation before the election would be, as well. Sens. Collins, Murkowski, and Romney seem certain not to vote for confirming a Justice pre-election. Embattled incumbents might think they would be giving their job away by voting to confirm a strong, controversial conservative.

As for confirming a nominee if Trump loses, I think that’s unlikely too. Again, three no votes seem cast in stone. Good luck herding the remaining 50 GOP Senators, including lame ducks, into the fold.

Confirmation of a Justice by a lame duck Senate would increase the likelihood that Democrats will succeed in packing the Court at the first available opportunity. This, too, might deter a few Republican Senators.

As for whom Trump will nominate, I expect him to pick the person he concludes will maximize his reelection chances — maybe Judge Amy Barrett who might galvanize conservatives and evangelicals. This seems especially true if he believes the likelihood of confirming anyone he nominates is low, in the event Biden wins.

It’s likely that Trump sees Ginsburg’s death as an electoral opportunity and, my doubts notwithstanding, it might well be.

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