RBG’s death complicates the composition, fate of the US Supreme Court

By Elpidio R. Estioko

Justice Ruth Bader Ginsburg


Aside from the COVID-19 pandemic, the focus is now on the U.S. Supreme Court’s future with the death of Justice Ruth Bader Ginsburg (RBG), 87, due to lingering pancreatic cancer.

On Sept. 26, U.S. President Donald Trump announced Amy Coney Barrett, a 48-year-old conservative federal appeals court judge, to the Supreme Court as a replacement of the late RBG creating “a fierce partisan battle in the remaining days of the hotly contested presidential election.”

In his announcement, Trump called Barrett a “woman of towering intellect” and “unyielding loyalty to the constitution.”

Peter Baker and Maggie Hagerman of New York Times reported that “Trump selects Amy Coney Barrett to fill Ginsburg’s seat on the Supreme Court, a favorite of conservatives, to replace Justice Ruth Bader Ginsburg and will try to force Senate confirmation before Election Day in a move that would significantly alter the ideological makeup of the Supreme Court for years.”

The authors further said that the “president’s political advisers hope the selection will energize his conservative political base in the thick of an election campaign in which he has for months been trailing former Vice President Joseph R. Biden Jr., his Democratic challenger. But it could also rouse liberal voters afraid that her confirmation could spell the end of Roe v. Wade, the decision legalizing abortion, as well as other rulings popular with the political left and center.”

While other justices have been approved in presidential election years, the nomination will signal an extraordinary move by Senate Republicans to confirm her for the court before the election on Nov. 3, an unprecedented move in American history.

In picking Barrett, the authors said “the appointment would shift the center of gravity on the bench considerably to the right, giving conservatives six of the nine seats and potentially insulating them even against defections by Chief Justice John G. Roberts Jr., who on a handful of occasions has sided with liberal justices.”

According to the report, Trump “wanted to rush his nominee through the Senate by Election Day to ensure that he would have a decisive fifth justice on his side in case any disputes from the vote reached the high court, as he expected to happen.”

If confirmed, Barrett would become the 115th justice in the nation’s history and the fifth woman ever to serve on the Supreme Court. At age 48, she would be the youngest member of the current court as well its sixth Catholic. And she would become Trump’s third appointee on the court, more than any other president has installed in a first term since Richard M. Nixon had four, joining Justices Neil M. Gorsuch and Brett M. Kavanaugh.

He made the nomination with Utah senator Mitt Romney announcing his vote in favor of filling up the vacant seat before the Nov. 3 election, with that the GOP now has 51 votes to proceed with the nomination. Romney has given the party the 51 backers needed to move forward with voting on Trump’s candidate to fill up the vacant seat.

Romney was one of four GOP senators who were initially believed to be siding with the Democrats in filling out the vacant seat after the election pursuant to RBG’s death-wish “not to be replaced until after election.” It turned out that only two GOP senators opposed the nomination to be voted upon before the election. Both Alaska senator Liza Murkowski and Maine senator Susan Collins want the nomination after the election. The Democrats need four GOP senators to join them to be able to derail the nomination. If three GOP sides with the Democrats, it will be a tie so Vice President Mike Pence, a Republican, will break the tie in favor of the nomination.

As to the other two of four Republicans who initially might have opposed filling the seat before election, Charles E. Grassley of Iowa and Cory Gardner of Colorado, refused to consider President Barack Obama’s nomination in an election year in 2016 thereby agreeing to support Pres. Trump’s move to fill up the vacancy immediately. That seals the chance of Trump to nominate the replacement and get an official confirmation before the Nov. 3 presidential election.

RBG was a liberal, the fourth in the nine-member Supreme Court, that balances the conservative ideas with that of liberal issues confronting the highest court of the land. Her death has its long impact even beyond the election due to critical cases on health care, labor, women’s rights, Obama Care, equal rights, environmental issues, abortion, voting rights, healthcare, gun control, environmental issues, civil liberties and human rights.

Had there been four GOP senators who opposed, it should have been a bigger problem. Because if no replacement is made before the election, there will be a 4-4 vote, with the chief justice siding with the liberals or a 5-3 vote where the chief justice sides with the conservatives therefore a verdict is arrived at. If a 4-4 vote is registered, there will be no verdict because there is no majority vote, so the decision in the lower court becomes final.

With that, Republicans now have secured the numbers needed to ensure that Trump’s Supreme Court nominee will face a confirmation vote in the Senate before Nov. 3.

If Barrett will be confirmed, the nine-member Supreme Court will now have three liberals and five conservatives with the chief justice balancing the votes. Even if Chief Justice John G. Roberts, Jr. sides with the liberals based on merits of the case, it will still be a 5-4 vote in favor of the conservatives.

ELPIDIO R. ESTIOKO
was a veteran journalist in the Philippines and an award-winning journalist here in the U.S. For feedbacks, comments… please email the author at estiokoelpidio@gmail.com.

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