Why Trump’s quick process of replacing Ginsburg was an unwise strategy
By: Xiaodong Fang
Tags: Supreme Court, Presidential Campaign, Strategy, Trump

The passing of Supreme Court Justice Ruth Bader Ginsburg has opened up a new political battle over the vacant seat. Both President Donald Trump and Senate Majority Leader Mitch McConnell have said to fill the vacancy on the Supreme Court without delay.

Photo by Bill Mason on Unsplash

With the general elections approaching, it seems a no-brainer decision for Republicans to speed up the nomination and confirmation of a new conservative Justice and move the makeup of the court from its current split of five conservative justices and four liberal justices to a more dominant 6–3 majority.

However, with regard to the upcoming elections and the long-term “partisan atmosphere” of the judiciary, pushing a hasty nomination may not be a wise strategy for President Trump and Republicans. I would like to explain the argument in three aspects: confirmation process, electoral bargaining, and political environment.

Nomination doesn’t mean confirmation

Timing is not in Trump’s and Republicans’ favor. An analysis of government records found that the current eight members of the Supreme Court were confirmed in an average of 68 days. The last time a president pushed for confirmation of a Supreme Court justice during a presidential election year was in 1988, for Reagan’s choice of Kennedy for the court. In March 2016, former President Obama nominated Merrick Garland for the vacancy created by the death of Justice Antonin Scalia, on Feb. 13, 2016, 342 days remaining in Obama’s term. But Senate Republicans delayed the process and refused to fill the seat until Trump sworn in office.

While a confirmation vote before the elections or between November and January during a lame-duck session of Congress is possible, Democrats will certainly pursue institutional rules and campaign intensely to delay the Senatorial process.

Even though a speedy vote has reached the floor, a confirmation with Senate majority is not guaranteed. Though the GOP has a 53-seat Senate majority, several vulnerable Republican Senators have shown their dissent about the quick nomination before the new presidential term. For example, Sen. Susan Collins, (R-Maine) in a tough reelection race, said that the Senate should not vote on a Supreme Court nominee prior to the presidential election given its “proximity,” and Chuck Grassley (R-Iowa) said he would not recommend holding a hearing on a nominee in an election year. Also, if the Democrats take the Senate majority in the new Congress, then the confirmation will probably fail.

It may hurt Trump and Republicans in the general elections

A President’s Supreme Court Justice nomination in the election year is a sign of weakness of his party in the upcoming elections. Obama’s quick nomination in 2016 was controversial, which to some extent, hurt Hilary Clinton and the Democrats in 2016. As an incumbent President, a speedy nomination will not help Trump build his confidence of getting re-elected.

The effect will also apply to the Senator races where Democrats only need a net gain of three seats to flip the chamber. According to this analysis, eight of the top 10 Senate seats on the potential list of flipping in 2020 are held by Republicans.

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Will there be a more conservative Supreme Court? Probably not.

Having more Justice nominated and confirmed does not ensure a president’s longer-term judiciary legacy. Many factors determine the court decisions.

Statistical analysis of Supreme Court votes found that Justices’ ideological preferences were always changing, and sometimes their decisions departed

from the views of the presidents who nominated them. For example, Justice Warren was nominated by President Eisenhower in 1953 and since joining the Supreme Court his ideological preferences were switching from conservative to liberal. Perhaps the Civil Rights movements in the 1960s played a role in changing the Justice’s ideological preferences.

The current American political atmosphere is not short of advocates and campaigns from liberal activists, lawyers, and social movements. Perhaps one or some of the Supreme Court Justice(s) nominated by Republican presidents will change their judiciary preferences towards a liberal-leaning pattern.

And thus, a rush Supreme Court nomination, which only enhances anti-Trump sentiments and pro-liberal movements, should not be a well-thought-out strategy of President Trump and Republicans.

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