Amy Coney Barrett, a conservative judge, will replace Ruth Bader Ginsburg.
Donald Trump began on Saturday the path to consolidate the turn to the right of the Supreme Court of the United States, the ultimate arbiter of much of the social and political debates in a diverse country of 330 million inhabitants, which is why Barret’s arrival to the court is by far more important than Trumps reelection.
The president announced the nomination of conservative judge Amy Coney Barrett two days ago, but Democrats were already launching attacks early last week when her name began to be circulated by the mainstream media.
The replacement of Ruth Bader Ginsburg, who died last week, strengthens the Republican among its bases just over a month before the presidential elections, although it may also spur Democratic voters to go to the polls fearful of future setbacks. Unfortunately for them, even if Trump does not get reelected on November 3rd, the shift from mostly liberal to conservative won’t be stopped by electing Joe Biden.
The election of a member of the Supreme Court is one of the most important decisions for a president of the United States, although it must then be endorsed in the Senate.
The body is made up of nine judges who remain on their seats for life, a condition that shields its independence from any government or legislative chamber, but which also makes it a group of all-powerful jurists in transcendental matters for the future of society. Many years ago, the court upheld the use of tax payer money to finance abortion rights, enshrined same-sex marriage and ended racial segregation in public schools.
Until Ginsburg’s death on September 18, there was a majority of five justices considered conservative, nominated by Republicans, to four progressives, nominated by Democrats, with one or two so-called conservatives who have not voted very conservatively lately. That makes Barret’s arrival to the US Supreme Court even more important.
Her approval by the US Senate would not only set a more considerable numerical conservative majority at the court but would also allow conservatives to rest more at ease when justices Samuel Alito and John G. Roberts decide to legislate instead of applying the Constitution as it is written.
Trump, with the Republican majority in the Senate on his side, is preparing to place a conservative sixth member on the high court and tip the balance further.
The decision not only heats up the campaign for the shift to the right of the highest judicial authority but also Democrats allege that, although he has the constitutional duty to do so, Trump should not break the tradition to appoint a new justice during an election year. Democrats forget two things: First, Trump is not a politician, and second, he has a duty, according to article 2 of the US Constitution to do exactly that. It is not optional.
The president announced this Saturday his nominee from the White House, but on Friday night the US press already advanced that the chosen one was Amy Coney Barrett, a religious and conservative jurist, known for her fierce opposition to abortion. “She is a woman of the highest intellect and unwavering loyalty to the Constitution,” Trump said when he presented her in the gardens of the official residence.
Barrett was an aide to another Conservative Supreme Court Justice, Antonin Scalia, who died in 2016. Trump appointed her in 2017 to the Court of Appeals for the Seventh Circuit, in Chicago, where hes conservative rulings have left their mark. At just 48 years old, she could serve on the high court for decades.
Both Trump and his nominee spoke words of praise to the figure of Ginsburg, a progressive icon, who was central to the feminist advances in the United States. The president referred to her as “a legal giant and a pioneer for women.”
Her replacement by a jurist in the ideological antipodes will shake the electoral campaign. Barrett, who if confirmed by the Senate will be the fifth woman to join that bench in the history of the US high court, stressed the close friendship of Scalia, her mentor, with Judge Ginsburg.
The other two judges now active in the Supreme Court are part of the progressive minority, which has now remained in three members: Sonia Sotomayor, 66, nominated by Obama in 2009; Elena Kagan, 60, also nominated by the Democrat in 2010; and the oldest of all, Stephen Breyer, 82, chosen by Bill Clinton in 1994.
Conservatives include Clarence Thomas, 72, appointed by George Bush Sr. in 1991; Samuel Alito, 70, confirmed in 2005 during the Bush Jr. Administration; the president of the court, John Roberts, 65, appointed the same year by the same president; and the two most recent, nominated by Donald Trump in 2017 and 2018, respectively: Neil Gorsuch, 53, and Brett Kanaugh, 55.
If the confirmation of Amy Coney Barnett goes ahead, Trump will have achieved the political victory of having placed up to three judges in a single term, more than any other president except Richard Nixon, who in his first administration nominated four.
The guarantee of incorporating more conservative magistrates in the Supreme Court, or avoiding the arrival of progressives, was one of the main reasons why many traditional Republican voters were loyal and voted for a candidate like Trump, whom many considered populist and unprepared. According to some subsequent polls, 26% of the voters of the current president said that the high court was the most decisive factor in voting for him.
Now, the confirmation process in the Senate has all the ingredients to become a drama of the first order. Republicans will proceed to confirm a new member of the Supreme Court.
Now there are less than 40 days until the appointment with the polls, on November 3, and the president’s party is preparing an express confirmation process to replace a recently deceased judge.
“I’m going to be clear: the voters must choose the president, and that president must choose the replacement for Justice Ginsburg,” protested Democratic presidential candidate Joe Biden, shortly after the judge’s death. But his party does not have enough senators to prevent Trump from appointing and the Republican Senate to confirm Barret.
Republicans control 53 of the 100 seats, in addition to the Judicial Committee, which is the one where confirmation takes place. That committee is led by Lindsey Graham, one of the most loyal legislators to Trump. The person in charge of taking the vote to the plenary session is also the majority leader, Mitch McConnell.
The process will permeate the campaign for the White House and also the elections to the Senate, which is partially renewed on November 3, although that race is often overshadowed by the presidential one. The replacement of Ruth Bader Ginsburg by a conservative justice puts the spotlight on those 35 seats at stake.
Even if they lost the majority, Republicans have time to confirm the new magistrate before the inauguration, in January. Still, with some elderly Supreme Court justices, those seats matter for the evangelical vote. The high court must make important decisions this course about abortion, Obamacare, immigration and the elections themselves.
Democratic party stars of the likes of Hillary Clinton have told Biden not to accept any election result that does not mean a Democratic victory. In fact, the Democratic Party has hired an army of lawyers who is already at work to challenge every single aspect of the 2020 election, should their candidate lose on November 3rd. That is why the Supreme Court confirmation is more important than Donald Trump’s reelection.