What to Know in Washington: Ginsburg’s Death Reshapes Election

Ruth Bader Ginsburg, whose 27-year tenure as the second female justice on the U.S. Supreme Court culminated a legal career dedicated to advancing the rights of women, died at 87. She died due to complications of metastatic pancreatic cancer and was surrounded by her family at her home in Washington, the court said in a statement yesterday. Ginsburg battled with five bouts of cancer.

Her death has thrust the Supreme Court into the center of the presidential race just six weeks before Election Day, reshaping the showdown between President Donald Trump and Democratic nominee Joe Biden.

For Trump and his Republican allies in the Senate, the vacancy lets him change the subject away from the coronavirus pandemic that has imperiled his odds for winning a second term. Now, they can offer their base a chance to tighten the conservative majority on the high court for years to come.

Yet Biden and Democrats can seize on the moment, too, invoking Ginsburg’s legacy to spur turnout on Nov. 3 and give liberals a fresh reason to vote out Trump. Democrats contributed more than $20 million to ActBlue in the four hours after Ginsburg’s death was announced.

Jim Manley, a former top aide to ex-Senate Democratic leader Harry Reid, said he hopes Democrats “wake up” to the importance of the Supreme Court.

“The reality is that Republicans have always taken judicial nominations more seriously than Democrats,” he said. “My hope is that that actually changes with this shocking news. Whether it does or not remains to be seen.”

The president had already begun to make the court a campaign issue, releasing a list of potential candidates just last week. He will push ahead with another nomination in the final weeks of his first term, and if he succeeds, he will have selected three justices in just four years.

“This resets the race,” said Republican donor Dan Eberhart. “We are not running solely on the Covid response and the economy anymore.” Read more from Jennifer Epstein, Mario Parker and Tyler Pager.

Photographer: Sarah Silbiger/Bloomberg
Mourners held an impromptu vigil for Ginsburg at the U.S. Supreme Court on Friday night.

Republicans Face Political Calculation on Vote

Senate Republicans face a critical choice on replacing Ginsburg—vote on her successor before Election Day, or wait until immediately afterward—when Trump will still be president no matter the Nov. 3 outcome until next January.

The choice comes down to a calculation of the politics.

Senate Majority Leader Mitch McConnell (R-Ky.) last night promised a vote on Trump’s pick to replace the high court’s liberal icon, but he didn’t put a timetable on it. The pivotal question in coming days is whether McConnell would try to keep that promise before the November elections or hold off until a lame-duck session before the transition to the new Congress.

In a letter to his Republican colleagues obtained by the Washington Post, McConnell urged them to “keep your powder dry” in responding to the press until senators return to Washington if they are unsure what to say or are inclined to oppose giving a nominee a vote. “This is not the time to lock yourselves into a position you may later regret,” he wrote.

The Senate would need to move faster than usual to confirm a nominee before the election 45 days from now. The average time from nomination to Senate vote—after vetting and hearings—is 69.6 days, or about 2.3 months, according to a 2018 report from the Congressional Research Service. But McConnell in his letter said there was plenty of time. He cited Ginsburg’s nomination in 1993, which took only 50 days from the the time it was announced until she was confirmed.

McConnell can force a vote anytime he has 50 senators ready to back a confirmation with Vice President Mike Pence serving as the tie breaker. He can afford to lose three Republican votes and still press ahead.

Delaying a vote until after the election could have political benefits. Republicans could use the vacancy to energize their base in some of the swing states where incumbent GOP senators are in close contests. It also would avoid a politically perilous vote for incumbent senators of their party such as Sen. Cory Gardner (R-Colo.) and Susan Collins (R-Maine), who are running for re-election in states Trump lost in 2016 and trail their Democratic challengers this year. And two senior Republicans—Sens. Chuck Grassley (R-Iowa) and Lindsey Graham (R-S.C.)—might find themselves facing questions about past statements about election-year Supreme Court nominations. Read more from Laura Litvan and Steven T. Dennis.

Biden Urges Delay: Biden said the Senate should wait to confirm a justice to replace Ginsburg until after the election, Tyler Pager and Jennifer Epstein report. “There is no doubt—let me be clear—that the voters should pick the president and the president should pick the justice,” Biden said at the New Castle County airport in Delaware upon returning from a campaign stop in Minnesota.

“This was the position that the Republican Senate took in 2016 when there were almost 10 months to go before the election. That’s the position the United States Senate must take today and the election’s only 46 days off.”

Amy Coney Barrett Emerges as Front-Runner

Amy Coney Barrett swiftly emerged as an early front-runner to replace Ginsburg among allies of Trump. Barrett, a U.S. Court of Appeals judge appointed by Trump, is on a list of potential high court nominees Trump updated earlier this month. She was also among the finalists Trump considered before selecting Brett Kavanaugh for the court in 2018.

“If the president is of a mind to replace Justice Ginsburg with a woman, then somebody who would be at or near the top of the list would be Judge Amy Coney Barrett,” said John Malcolm, a legal expert at the conservative Heritage Foundation whose list of possible Supreme Court justices was largely adopted by then-candidate Trump in 2016.

“She’s certainly a favorite among social conservatives and also had expressed a great deal of skepticism about the administrative state,” he added. Read more from Josh Wingrove, David Yaffe-Bellany and Jennifer Jacobs.

Photo: Robert Franklin/South Bend Tribune via AP
Amy Coney Barrett in 2018.

Successor Could Shift Law on Abortion, Health-Care Act: The next justice would move the Supreme Court closer to overturning the right to abortion, threaten the Affordable Care Act and, if confirmed quickly enough, strengthen Trump’s hand in legal disputes over the November election. Ginsburg’s death gives the president and his Republican allies an opening to leave a transformational mark on a court already shaped by two Trump appointments.

Abortion rights were already in doubt even before Ginsburg’s death. Although the court in June struck down a law that might have left Louisiana with only one clinic, the vote was 5-4, with Chief Justice John Roberts suggesting in his pivotal opinion he might support other restrictions. The Louisiana law would have required doctors who perform abortions to get admitting privileges at a local hospital.

The future of abortion rights could now depend on Trump-appointed Kavanaugh, who dissented in the Louisiana case and said he would have ordered more lower-court fact-finding. During his confirmation hearings in 2018, Kavanaugh declined to say whether the landmark 1973 Roe v. Wade abortion-rights ruling was correctly decided or whether he would vote to uphold it as a justice.

The court is scheduled to hear arguments on the Affordable Care Act a week after the election. The Trump administration is urging the court to declare the law invalid, including its protections for people with pre-existing conditions. Roberts joined the court’s liberals in a 5-4 decision to uphold the core of the law in 2012, but the law’s supporters now will have to secure a second conservative vote to win the case. A federal appeals court found part of the original 2010 law unconstitutional and left doubt about the rest of it. Greg Stohr has more on the issues the next justice may face.

Remembering Justice Ginsburg

“Our nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague,” Chief Justice Roberts said in a statement. “Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her—a tireless and resolute champion of justice.”

Long before President Bill Clinton appointed her to the Supreme Court in 1993, Ginsburg argued cases before the court as a scholar and advocate of the women’s rights movement. She was a high-profile proponent of the unsuccessful effort to adopt an Equal Rights Amendment to the U.S Constitution. Read Ginsburg’s obituary from Greg Stohr and Laurence Arnold.

  • President Trump said Ginsburg was “an amazing woman who led an amazing life” before boarding Air Force One last night, and offered a more formal statement later, one of many tributes that flooded in after her death was announced. Ros Krasny offers a selection of the responses.
Photographer: Andrew Harrer/Bloomberg
Ruth Bader Ginsburg

Ginsburg Embraced Dissenting Role: Ginsburg was famous for her powerful dissents, but the “Notorious RBG” didn’t start out that way. “If this is a time for consensus building on the court, and I believe it is, Judge Ginsburg will be an able and effective architect,” President Bill Clinton said in announcing the then-60-year-old-jurist’s high court nomination in 1993.

She certainly parted ways with the majority during her dozen years on the Rehnquist Court, but her more vivid dissents under Chief Justice Roberts were written in the hopes they’d “prove to be the basis of change” in the future and attracted more public attention and sparked debate, said biographer Jane De Hart. Writing in the early days of the Covid-19 crisis in 2020—15 years into the Roberts Court—Ginsburg lamented that the high court’s five Republican appointees put voters in an impossible situation: “Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own.”

Ginsburg embraced her role as dissenter, writing minority opinions ranging from environmental law to intellectual property to civil procedure. Her most memorable—and perhaps most effective—concerned civil rights. Read more from Kimberly Strawbridge Robinson and Jordan S. Rubin.

Ginsburg Championed Gender Equality: Ginsburg made an indelible mark on the law as an advocate for gender equality long before she became an icon on the court. She designed a legal strategy that directly challenged longstanding gender stereotypes as a way to fight sex discrimination, legal scholars said. The arguments she advanced as an attorney led to decisions that tore down biased laws, recognized new protections for women workers, and created precedents that continue to influence the law decades later, scholars said.

“She transformed the lives of American women, opening doors of opportunity,” said Dorothy Samuels, a senior fellow at the Brennan Center for Justice who’s writing a book on Ginsburg. “There’s not a woman today who doesn’t owe her a debt of gratitude.”

The closest parallel to Ginsburg’s work as strategist behind the courtroom fight for legal equality for women in the 1970s is Thurgood Marshall, who did much the same in the legal battle for civil rights in the 1940s and 1950s. Both are the rare justices whose courtroom achievements before joining the court ensured they’d be long remembered regardless of what they did as justices. Read more from Robert Iafolla.

To contact the editors responsible for this story: Zachary Sherwood at zsherwood@bgov.com; Loren Duggan at lduggan@bgov.com