Seven years ago, many liberals urged Ruth Bader Ginsburg to step down and hand over her Supreme Court seat. President Obama had three years left in office and the Democrats still held the Senate by a comfortable margin (they would lose it in the 2014 midterms). Ginsburg, then 80 and having already spent two decades on the court, declined to go.
If she had known Donald Trump was going to succeed Obama – and Senate Republicans would come to flout norms as shamelessly as Trump – she may well have gone earlier. Instead, Ginsburg appeared to expect Obama’s successor would be benevolent. “There will be a president after this one, and I’m hopeful that that president will be a fine president,” she told the New York Times in 2013.
She also voiced doubts that Obama could get through a Republican-controlled Senate someone with her same judicial principles (although Democrats could have pushed a nominee before 2015 by scrapping the Supreme Court filibuster, as Mitch McConnell did in 2017).
If Hillary Clinton had won and Democrats had taken back the Senate, Ginsburg – the most powerful feminist force to sit on the Supreme Court, as well as one of its more brilliant justices more broadly – could have stepped down under the first female president and been replaced by a like-minded justice.
But Clinton didn’t win, and now America is left with a constitutional quirk that is likely to put a cap on the possibilities of liberal politics for a generation. That quirk is the impending lame duck period between the 3 November presidential election and the inauguration of a president.
Republicans may struggle to force through a replacement for Ginsburg before the election, which is now less than seven weeks away. For that to happen, Democrats (if they can, as expected, hold their caucus of 47 senators together), need four Republican senators to oppose replacing Ginsburg.
That may be possible before the election. A number of Republican senators, such as Susan Collins, Lindsey Graham, Cory Gardner and Thom Tillis, are in tough re-election battles. They may look to win over moderates by refusing to rush through a nominee, or they may side with the conservative base and back Trump’s nominee.
One or two others – Lisa Murkowski, Rand Paul, Mitt Romney – have occasionally rebelled against Republican leadership in the past. And Collins and Murkowski have both recently said any new nominee should not be appointed before the election.
But after the election – an election in which some of these borderline senators will likely have been beaten and vilified by Democratic challengers – the incentives may well change. As commentators observed during the Brett Kavanaugh hearings in 2018, there was always a likely limit to the wavering opposition of then-Republican senators such as Jeff Flake.
Why? Because steadfast opposition to Kavanaugh endangered Flake’s Senate afterlife. By blocking Kavanaugh, Flake would have sacrificed speaking fees, consultancy roles and what remained of his lifelong identity as a Republican. In American politics, there are few post-career paths for the party man who abandons the party in its most critical fight. That unfortunate truth still applies.
As for the mildly more moderate senators, such as Murkowski or Romney, they face a choice between two options: a Trump nominee they may not like, or a Biden nominee whose politics they almost entirely oppose. Indeed, after Ginsburg’s death, a spokesperson for Romney denied the senator will vote down a Trump nominee.
These are the daunting incentives Democrats are up against over the next four months. If Ginsburg is replaced by a Trump nominee, the court will contain five steadfastly right-wing justices, even without the support of John Roberts, the Bush-appointed chief justice (whose jurisprudence has shown signs of moderation in recent years, as he has become the court’s swing vote).
Without an expansion or reformation of the Supreme Court (a slim possibility), this could put a cap on Democratic ambitions for a generation. It could also imperil many of the Democrat-led court victories won over the last 50 years – not least the right to have an abortion, as established under Roe v Wade in 1973, and largely upheld thereafter. Ginsburg was one of the court’s most eloquent upholders of that right. After her death, it may soon be at great risk of being lost.