To perform well on a law school exam, one must be able to analyze both sides of an issue. This analysis often requires the test taker to be objective, dispassionate, and take a logical view of issues, no matter how strong their opinions are to the issue they are analyzing. With the Supreme Court now the biggest political issue in 2020, there is no doubt that the United States is in for some of the most bitter days in our nation’s history. Yet, I believe that an unbiased overview might be exactly what is needed at this time.
After Antonin Scalia died in 2016, the Senate GOP majority, led by Kentucky Senator Mitch McConnell, refused to hold a floor vote or even consider President Obama’s selection of D.C. Circuit Chief Judge Merrick Garland. Naturally, Democrats are now using Senator Mitch McConnell’s words claiming that the Senate ought to let the American voters decide the next justice because of how close we were to a Presidential election. Republicans will counteract this point by stating that this time is clearly different. In 2016, the President and the Senate were controlled by different parties, while in 2020 they are both controlled by the same party. Also, the issue of who should approve Supreme Court nominees was on the ballot in both 2016 and 2018 and in both election cycles the U.S. electorate gave control of the upper chamber to the GOP.
Senate Republicans and Democrats will both be flip-flopping this cycle. Where the Republicans are at a disadvantage is in the number of Senators who have stated they will not vote to fill a vacancy during the election. Senator Lindsey Graham stated that same view in 2018. But Republicans have an election tested defense: that was before the confirmation hearings for Brett Kavanaugh.
Prior to the allegations against now-Justice Kavanaugh, Republicans were at risk of missing opportunities to flip the Senate or even losing a few seats. Yet, the party believes that “no” votes cast against Justice Kavanaugh from Democratic Senators in North Dakota, Missouri, Indiana, and Florida helped expand their Senate majority. This view can be buoyed by the fact that in 2016, of the 21% of Americans who listed the Supreme Court as the most important factor in their vote, they supported Donald Trump by 15% over Secretary Hillary Clinton.
Based on how important the Supreme Court is to conservative voters, there is little damage that can be done if Donald Trump nominates a judge. At worst for Republicans, voters will be tasked with deciding all three branches at the same time and this will likely lead to a boost in conservative get out the vote efforts. Joe Biden will then need to respond. He has so far refused to release a list of judges who he would likely nominate. If Joe Biden wants to fight the President on this issue, he will need to provide the American people with one or more clear alternatives. This way, the voters can draw a line between the two and react accordingly.
Let’s say Donald Trump makes his nomination and the U.S. Senate decides, as Sen. McConnell has already said it would, to hold hearings and vote. How will that look and what should be done?
We should expect that those hearings will be a lot like the Kavanaugh hearings, if not worse. They will be bitter, personal, and direct. If the 7th Circuit Court of Appeals Judge Amy Coney Barrett is nominated, someone who is believed to be Trump’s frontrunner, we already know that Senate Democrats will try to claim she is too Catholic to be on the court.
We can likely assume that the nominee will be a woman and the issue of Roe v. Wade will be the litmus test that is applied. So, let’s assume it is Judge Barrett. How would she approach this issue? Judge Barrett’s academic writing has been extensive on a legal concept called stare decisis, or “to stand by things decided” (i.e., precedent). Her view on precedent and devotion to her religion has made Judge Barrett more controversial for hardliners who want strict protection of Roe. She has been able to face this criticism already when she was nominated for the 7th Circuit and, at that time, stated that she would let neither her beliefs on precedent nor religion govern in cases. Ultimately, Judge Barrett has answered the question of how she would rule in a case similar to Roe, which is as follows: the right to an abortion will not change; if there are any changes they should be expected in the definition of “undue burden.”
These two words are the legal test that courts apply when determining if a restriction on the right to abortion is proper or unconstitutional. Based on her previous statements it would appear late-term abortions would not be favored by a Justice Barrett and she would be open to permitting more restrictions. What those restrictions would be is anyone’s guess.
Now if Trump has his nominee and the Senate is considering the nominee, how can the Democrats block it? First, look for vulnerable Republicans. Democrats will need four Republicans to flip in order to block a nomination. Senator Lisa Murkowski of Alaska and Senator Susan Collins of Maine are both confirmed no votes based on statements made about the timing of the vote. This means the Democrats need just two more no votes and the nomination can be blocked until after the election. So how can they get them?
Senator Mitt Romney of Utah is an easy choice. He has a safe seat, is not up for re-election, and is not a fan of the President. However, if the Democrats start to attack Judge Barrett on her faith, Sen. Romney, being very religious himself, might not take too kindly to that kind of attack. But even if you get a no from Senator Romney, Democrats will need to flip one more vote. That is where Colorado comes into play. One of the most vulnerable U.S. Senators is Cory Gardner. His vote will likely be the one that makes or breaks a Trump nomination. If Sen. Gardner believes that he has a chance to win re-election, he would probably prefer to vote no because it is very unlikely that Trump will perform well in Colorado, but the reverse could happen if his opponent, former Gov. John Hickenlooper, starts to run away with the race. Facing defeat, Cory Gardner could sacrifice his seat for a conservative Supreme Court.
Let me be clear, the GOP needs to lose all four of these votes to block the nomination. If only three vote no, we are looking at a 50-50 tie and Vice President Mike Pence will break the tie in favor of the appointment.
There are three more factors that need to be considered, however. First, the Senate vote does not have to happen before the election, but likely does need to happen by November 30 when Republican Martha McSally of Arizona could be replaced by Democratic challenger Mark Kelly to finish the term of John Kyl who, in turn, was finishing the term of John McCain. Second, despite most of these factors going against the GOP, Democratic Senator Doug Jones of Alabama is facing a tough re-election and a no vote would guarantee a loss. It is unlikely he will vote yes, but if he believes his seat can be kept, it is a conversation he and Senator Chuck Schumer might need to have. Third, the GOP does have a powerful campaign point as former Democratic Vice Presidential nominee and current Virginia Senator Tim Kaine was one of three Democrats who did support Judge Barrett’s nomination to the Court of Appeals. Senator Joe Manchin of West Virginia and Joe Donnelly of Indiana are the other two. While there is no indication that either Manchin or Kaine will support a “Justice” Barrett, and with Donnelly having lost in 2018, this will be a campaign point that will play well in debates and during the upcoming media spectacle.
No matter what happens with the Supreme Court, there is little doubt America is headed for some turbulence ahead. We have lost a legal and social icon during a global pandemic and bitter presidential election. We are now less than 45 days away from having our voices heard and Americans everywhere will have the ability to influence all three of its branches of government. Go make your voice heard and vote!