The battle to replace the late Supreme Court Justice Ruth Bader Ginsburg began just a few hours after her death when Senate Majority Leader Mitch McConnell announced the Senate would hold a vote on President Donald Trump’s nominee. Trump is expected to name a nominee by Saturday. Meanwhile, progressives are calling on Democrats to use every tool at their disposal to stop the nomination, and if that fails, expand the court in order to prevent deeply conservative rule from dominating the courts for decades.
Republicans hold a 53-47 majority in the U.S. Senate, and Supreme Court justices are confirmed by a simple majority, so Democrats would need four Republican defectors to block the nomination. A 50-50 tie would be broken by Vice President Mike Pence, who also serves as the president of the Senate.
Ginsburg was one of the court’s four liberal justices, and if her seat is filled by a Trump nominee—likely a hardline conservative—it would shift the balance of the court 6-3. Such a court could overturn Roe v. Wade, the Affordable Care Act, protections for the LGBTQ community, unions, and legislation required to fight the greatest threat ever faced by humanity: climate change.
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.
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.
Thus far, Republican Sens. Lisa Murkowski and Susan Collins have indicated they do not support voting on a Supreme Court justice before the next president is sworn in. But potential Republcian defectors like Mitt Romney, Chuck Grassley, and Cory Gardner—who faces a challenging reelection bid—have all said they would vote, giving Republicans the necessary votes to confirm Ginsburg’s replacement.
At 6 a.m. on Sept. 21, the Monday after Ginsburg’s death, protesters with the groups #ShutDownDC and the youth climate group Sunrise Movement held a demonstration at Sen. Lindsey Graham’s Washington, D.C., home to confront him with his own previous remarks. “I want you to use my words against me… if there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination,” Graham’s voice echoed from a protester’s loudspeaker.
Justices serve lifetime appointments. If Trump, who lost the popular vote by more than three million, confirms a 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.
New York Rep. Alexandria Ocasio-Cortez called on Democrats to do everything they can to block the nomination: “We must use every tool at our disposal, from everyday people, especially in swing states, we need everyday people to call on senators, to call on folks on the bubble, to call Republican senators to make sure that they hold this vacancy open. And we must also commit to holding every procedural tool available to us to ensure that we buy ourselves the time necessary.”
If Ginsburg’s replacement is confirmed, 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.