Democratic hopes that Justice Ruth Bader Ginbsburg would survive Trump’s presidency have vanished.
Senate GOP leader Mitch McConnell has already declared the “Merrick Garland rule” inoperative. He won’t wait for the election results to ram through a Trump-appointed replacement. Related: Kentucky law professor argues waiting is “necessary to save our democracy”
In theory, the Democrats have several options. First, they can argue for fairness, consistency, and make the perfectly logical argument that the voters should decide. I said in theory, because you can write this off from the get-go. That leaves the Democrats with three possible courses of action. Of course, if Trump is reelected and the GOP retains the Senate, they have none.
- Hope at least 4 of the 53 GOP senators won’t go along. There’s some basis for this. The Atlantic suggests “the numbers may not be on [McConnell’s] side.” Some GOP senators may honor Ginsburg’s expressed wish that the selection of her replacement be left to the next president. Romney almost surely is in this camp. A couple, e.g. Murkowski and Collins, may not go along with a nominee likely to overturn Roe v. Wade. Endangered GOP senators might worry that confirming Trump’s choice could make their reelections even more difficult. Or a confirmation fight could drag into the new year.
- Pack the court. This becomes possible if Biden wins, Democrats take control of the Senate, and they abolish the filibuster — which they could do by a simple majority vote. This possibility was raised the last time Trump filled a Supreme Court vacancy. One commentator warned then it would be “political suicide” (this article). But with the election behind them, if the Democrats have won, there will be no political suicide to commit before the 2022 midterms. A variant of this strategy is to reduce the size of the court from 9 to 8, ejecting the new appointee; that would leave Roberts with a deciding vote on Roe v. Wade, but he has that now.
- Protect abortion rights with federal legislation. This would be relatively easy to do if Biden wins the White House and Democrats take control of the Senate, although they would have to abolish the filibuster.
My guess is Trump and McConnell won’t hold back. They’ll fill this vacancy if they can. The only thing that could stop them is fear such a move would cost them the White House and/or their Senate majority. But if they see those slipping away anyway, and they probably do, they have nothing to lose. Or they might decide running that risk is worth it. I think it’s virtually certain that if anyone on the GOP side hesitates, it won’t be Trump or McConnell, but individual senators. The latter hold the key to this.
Threatening to pack the court gives the Democrats real leverage. If they win the White House and Senate, they can neutralize a Trump appointee by this means (or, alternatively, by shrinking the court). Every wavering GOP senator will know this. And the Democrats are likely to be united on this, because of the high-handed manner in which Merrick Garland was kept off the court, which Democrats regard as a “stolen” seat. And they will be under almost irresistible pressure from their constituency to do whatever it takes to preserve Roe v. Wade.
Another, less drastic, way to deal with a Supreme Court majority for striking down Roe v. Wade is to guarantee the same rights with federal legislation. However, this option is less attractive, because a hostile Supreme Court might strike it down or water it down, and wouldn’t be available at all if the Court issued a decision precluding legislated abortion rights. Otherwise, it could possibly buy time to rebuild a liberal majority on a 9-member Court and is a less drastic and politically volatile option than resizing the Court.
Finally, there’s always the possibility — although it seems remote — that a pro-life majority of justices might leave Roe v. Wade in place, and just keep chipping at it as they have been, to preserve the principle of precedent — or to forestall what they might see as inevitable court-packing by a Democratic president and Senate if they move against Roe v. Wade too harshly.