The death of liberal Supreme Court Justice Ruth Bader Ginsburg gives President Donald Trump an opportunity to solidify his imprint on the right-leaning court with a third appointment.
With a new super-majority on the bench, wide-ranging issues could be impacted. Trump’s other Supreme Court appointments - conservative jurists Neil Gorsuch and Brett Kavanaugh - had succeeded other Republican-appointed justices.
Now, with the death of Ginsburg, Trump can do something no other president has accomplished in a generation: replace a liberal justice with a conservative jurist, pushing the court further to the right. The last time this opportunity presented itself was when Republican President George H. W. Bush nominated conservative judge Clarence Thomas in 1991 to replace liberal icon Thurgood Marshall.
Appointed to the Supreme Court in 1993, Ginsburg, who died Friday at her home in Washington at the age of 87 after five bouts with cancer, was the oldest and longest serving liberal justice on the nine-member Supreme Court.
For months this year, as Ginsburg’s health deteriorated, progressives worried that her death would enable Trump to nominate a replacement ahead of the November presidential election, regardless of whether voters decide to re-elect him for a second term.
Many conservatives are elated at the opportunity to shift the court away from what has for decades been, in their view, an overly liberal and activist tilt on the court.
But, for many liberals, their fears have been realized. “The next nominee is all but guaranteed to be well to the right” of Kavanaugh and Gorsuch, Trump’s two choices to the high court, said Gabe Roth, executive director of Fix the Court.
A lifelong champion of women’s rights, Ginsburg served as a federal judge from 1980 to 1993, when President Bill Clinton nominated her to the Supreme Court to become only the second woman in history to serve on the bench. Before her career as a federal jurist, Ginsburg made a mark as a women’s rights advocate at the American Civil Liberties Union in the 1970s, leading high-profile litigation against gender discrimination that led to changes in the law.
“I have four daughters, and I told them just now that this woman singlehandedly established rights for women as equal human beings,” said Kimberly Wehle, a professor of law at the University of Baltimore. “Of course, there are many women and men that contributed to that. But in terms of how the law was shaped, it was her work as a lawyer and, of course, as a Supreme Court justice.”
Known for speaking her mind, Ginsburg famously clashed with Trump during the 2016 presidential campaign, calling him a “faker,” prompting the real estate mogul to call on her to resign.
In a statement issued late Friday, Trump praised Ginsburg as a "fighter," saying her legal opinions "inspired all Americans, and generations of great legal minds."
With Ginsburg’s passing, the Supreme Court is ideologically divided between five conservatives – including the two Trump nominees – and three liberals. Conservative Chief Justice John Roberts has sometimes served as a swing vote.
The addition of a sixth conservative justice would help solidify what conservatives have long viewed as a tenuous hold over the court.
“It makes a big difference whether you have six conservative-leaning justices on the court or five conservative justices on the court,” said John Malcolm, vice president for the Institute for Constitutional Government at the conservative Heritage Foundation.
Historically, however, a string of Republican court appointees, going back to former Chief Justice Earl Warren and associate justice William Brennan, both appointed by President Dwight Eisenhower in the 1950s, has adopted liberal positions, Malcolm noted.
“So, even if the court was ‘more conservative’ in the sense that there were more Republican appointees, that did not make it a more conservative court,” Malcolm said.
The Heritage Foundation and the conservative Federalist Society have both advised the White House on Trump’s judicial nominees.
Gorsuch and Kavanaugh – while solidly conservative – have occasionally broken ranks and voted with the court's liberal wing on key issues, angering some on the right.
Trump, who campaigned on appointing conservative judges four years ago and takes pride on his judicial appointment record, recently released a list of 20 potential Supreme Court nominees, describing them as jurists in the mold of the late Supreme Court Justice Antonin Scalia and current conservative justices Clarence Thomas and Samuel Alito.
Among the front runners on Trump's list are Amy Coney Barrett, Amul Thapar and Thomas Hardiman, all currently appeals court judges.
If Trump decides to replace Ginsburg with another woman, Barrett will likely be considered the front runner, Malcolm said.
Barrett, 48, was appointed to the federal court of appeals for the seventh circuit in 2017.
Malcolm described her as a jurist committed to textualism and originalism – constitutional interpretation theories championed by conservatives.
“I would say the same thing about just about everybody on the president's list,” Malcolm said.
Wehle, who is the author of a book about the U.S. Constitution, said the appointment of another conservative justice could affect a host of issues: abortion rights, immigration, health care, the separation of church and state and others.
“It takes two-thirds of a majority of both houses of Congress and ratification by three quarters of the states to amend the Constitution through the will of the people,” Wehle noted. “But it only takes five lifelong members of the United States Supreme Court to effectively amend the Constitution in a decision.”
The prospects are solid that Trump could appoint a conservative to succeed Ginsburg, even if he loses to Democrat Joe Biden in the Nov. 3 election. With the help of Senate Majority Leader Mitch McConnell of Kentucky, Trump could try to push through a nomination before the election or – more likely – during the lame duck session of Congress after the election.
Just days before her death, Ginsburg reportedly dictated these words to her granddaughter, "My most fervent wish is that I will not be replaced until a new president is installed.”
A confirmation vote ahead of the inauguration is likely to prove toxic, making the contentious hearings over Kavanaugh’s nomination in 2018 “seem like an energetic pillow fight,” Malcolm predicted.
