President Donald Trump has chosen Judge Amy Coney Barrett as his nominee to replace the late Supreme Court Justice Ruth Bader Ginsburg. In contrast to Ginsburg’s reputation as a progressive justice, Barrett, 48, has taken hardline stances on a women’s right to choose, healthcare, gun rights and immigration. Currently serving on the 7th Circuit Court of Appeals, she previously clerked for the late ultra-conservative Justice Antonin Scalia and would be the youngest justice on the court.
Senate Majority Leader Mitch McConnel will soon begin hearings for Barrett and has the 51 votes in the Senate necessary to confirm them before the Nov. 3 election.
A ninth justice creates the possibility for a decisive conservative majority to rule on any potential election dispute.
“I think this will end up in the Supreme Court,” Trump said. “And I think it’s very important that we have nine justices.”
Trump, who is trailing in the polls to rival Joe Biden, hasn’t said he’ll accept the results of the Nov. election if he loses, and continues to repeat debunked claims of widespread voter fraud.
“We want to make sure the election is honest, and I’m not sure that it can be. I don’t — I don’t know that it can be with this whole situation — unsolicited ballots. They’re unsolicited, millions being sent to everybody,” Trump said on Thursday.
Non-partisan election experts have long maintained voter fraud is virtually nonexistent, and FBI Director Christopher Wray testified to Congress on Thursday that there’s no evidence of “any kind of coordinated national voter fraud effort in a major election, whether it’s by mail or otherwise.”
In Gore v. Bush, the Supreme Court voted 5-4 on ideological lines to stop the recounting of ballots in Florida, effectively awarding the 2000 presidential election to George W. Bush over Al Gore. Barret aided Bush’s legal team during the case.
Before her death, Ginsburg told her granddaughter, “My most fervent wish is that I will not be replaced until a new president is installed.”
Eight out of ten Democrats and five out of ten Republicans told Reuters/Ipsos that the winner of the November election should name Ginsburg’s replacement.
After Ginsburg’s passing, the court was left with five conservative and three liberal justices. Conservative Chief Justice John Roberts has sometimes sided with the court’s liberal wing, voting to strike down restrictive abortion law in Louisiana, upholding protections for DACA recipients, upholding firearm restrictions, and preserving the Affordable Care Act.
The new 6-3 court could be asked to resolve any election dispute in favor of Trump, overturn Roe v. Wade, the Affordable Care Act, protections for the LGBTQ community, unions, and legislation required to fight the existential threat of climate change.
Some like Princeton University Professor Keeanga-Yamahtta Taylor have argued for abolishing the Supreme Court all together.
“The Supreme Court has tended, for most of its history, toward a fundamental conservatism, siding with tradition over more expansive visions of human rights,” Taylor writes in the New Yorker.
In 2016, McConnell blocked a vote on President Barack Obama’s pick to replace the late Justice Antonin Scalia, citing the upcoming presidential election, which at that point was nearly 300 days away. At the time, Barret told CBS News she opposed the filling of a Supreme Court during a presidential election year.
The current election is only 37 days away.
Justices serve lifetime appointments. If Trump, who lost the popular vote by more than three million, confirms his third justice, it could help cement minority control of the Supreme Court for decades. As CNN notes, the other three current conservative justices were either appointed by George W. Bush, who also lost the popular vote, or confirmed by senators who represented less than half of the American population.
Democrats could still take decisive action if Joe Biden wins the presidency and they take control of the Senate.
Senate Minority Leader Chuck Schumer, when asked if he supported expanding the court, told reporters, “everything is on the table.”
On the campaign trail, Biden has opposed adding seats to the Supreme Court, but he faces increasing pressure to change his stance.