A few days before his death on September 18, US Supreme Court justice Ruth Bader Ginsburg had dictated his last wishes. “My dearest wish is not to be replaced until a new president has taken the oath”, had entrusted “RBG” to his granddaughter. Suffering from pancreatic cancer, the 87-year-old judge knew that her disappearance would trigger a war of succession capable of shaking up the presidential election of November 3, already electrified by the crisis linked to Covid-19 and the Black Lives movement Matter.
Cynicism or coincidence of the calendar, President Donald Trump – who has already boasted to journalist Bob Woodward of having appointed as many conservative judges as possible at all levels of the judiciary – announced on September 9 that he had completed the list of conservative judges from which he would choose the next Supreme Court judge.
Donald Trump, who has already made two appointments – those of conservatives Neil Gorsuch and Brett Kavanaugh – said the day after the death of “RBG” that he would propose a name, “probably” that of a woman, to replace her . Monday, September 21, he said on Fox News that he would designate this successor ” Friday or Saturday “, after the funeral of the most progressive judge among the nine magistrates of the highest American court.
The US president added that the Republican-dominated Senate had “Plenty of time” to confirm the appointment of this new judge before November 3. An attitude criticized by the Democratic candidate, Joe Biden, who denounced Sunday “A brutal exercise of political power” and ” abuse of power “.
If there was any hope that the November presidential election could appease the country, the death of “RBG” reshuffles the cards. The choice of his replacement will indeed have a significant impact on the cultural war that divides Republicans and Democrats around questions of society. But it could also play a critical role in the outcome of the elections, if it were to be challenged.
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An increasingly conservative key institution
The Supreme Court, which sits in Washington, District of Columbia, near the Capitol, is an essential institution in the political life of the United States. Its powers are established by Article III, Section 1 of the Constitution of the United States of America.
Its nine judges, appointed by the American president, are appointed for life and ensure the constitutionality of laws. Above all, they can permanently transform the face of American society on major subjects such as the right to abortion, same-sex marriage, health, immigration or global warming.
“The death of ‘RBG’ leaves the Court with a majority of 5 conservative judges against 3 progressives. At 5 against 4, there could still be some compromises, especially as President John Roberts, admittedly conservative, is a guarantor of law and institutions, not an ideologue. With 5 against 3, and perhaps soon 6 against 3, the balance would undoubtedly tip very to the right, and for a long time ”, observes Marie-Cécile Naves, associate researcher at the Institute of International and Strategic Relations (IRIS).
Arbitrator for the next election?
In this election year, the Supreme Court could also be called upon to arbitrate the outcome of the ballot in the event of a dispute, as it had done during the outcome of the 2000 election. Since September 4, postal voting started in North Carolina and pandemic concerns are leading tens of millions of Americans to vote by mail.
But Donald Trump never ceases to cast doubt on the validity of this ballot: he insists, without proof, that the increased use of postal voting could lead to massive fraud and thus suggested to his supporters to vote twice for test the system. He repeats over and over that “The only way he could lose the election would be to have it rigged”, which leaves the way open to possible challenges in case of defeat of the Republicans.
At a rally in Fayetteville, North Carolina on Saturday, he warned that he expected the courts to play a decisive role in the election, declaring a winner on election night, although before most of the postal votes have been counted. In fact, the counting of the many ballots sent by mail will be complex and could cause a delay in the announcement of the results.
“The Supreme Court will perhaps have to decide the outcome of this presidential election, if it is contested in the courts, in particular because of the arrival after November 3 of the ballots by correspondence, confirms the researcher. A predominantly conservative Supreme Court could mean a “remake” of the 2000 election, to Trump’s advantage. “
In the presidential election of November 7, 2000, Al Gore contested George W. Bush’s victory in Florida with 537 votes in advance before the Supreme Court of Florida and the Supreme Court of the United States. At the end of several weeks of imbroglio, the highest American court had declared, in the Bush v. Gore of December 12, 2000, that the recount ordered by the Supreme Court of Florida was unconstitutional and that it was impossible to carry out a recount within the allotted time, thus validating the election of George W. Bush.
Calculations and negotiations around the succession
Will Donald Trump succeed in getting a successor to Ruth Bader Ginsburg appointed before the November 3 election?
After the death of Judge Antonin Scalia in February 2016, Mitch McConnell, the leader of the Republican majority in the Senate, refused to submit to the Senate confirmation vote the candidacy of Judge Merrick Garland, proposed by Barack Obama. Mitch McConnell felt the Democratic president was too close to the end of his term and challenged his ability to use his constitutional powers. This time, Mitch McConnell said he was ready to hasten the process: he announced that he would put to a vote in the Senate the name of any candidate presented by Donald Trump.
The replacement of “RBG” will require the hearing of the candidate of Donald Trump by the judicial committee of the Senate of the United States. This candidacy will then be put to a vote in the Senate, where Republicans have a majority of 53 seats out of 100.
Lisa Murkowski and Susan Collins, two Republican senators, have already publicly opposed a vote before the presidential election. Other Republican senators could be lacking, especially those facing difficult re-elections in moderate states.
“The negotiations have started, and it only takes a simple majority of 51 votes to confirm the appointment of the judge chosen by Trump. In the event of a 50-50 tie, the President of the Senate decides. And since it’s Mike Pence, who’s also the vice president …, comments Marie-Cécile Naves. Mitch McConnell will want to make history, and this is a historic opportunity for the American right, which is no longer in tune with the evolution of American demography and societal advances, to establish its influence at the highest level of the state. They have until January 20 to do so, which is enough on paper. “
Donald Trump’s candidates
If the Republican senators Ted Cruz, Tom Cotton or Joshua Hawley appear in the list of the 20 candidates of Donald Trump, it is the names of two women, Amy Coney Barrett and Barbara Lagoa, which return with insistence in the American press.
From the first, the president would have said: “I keep it in reserve for [remplacer] Ginsburg “, reported the news site Axios, in May 2019. If Donald Trump decides on her, Mr.me Barrett, 48, a Catholic and mother of seven, would become the only conservative Supreme Court magistrate, with the other two high court women being progressives.
At 52, Cuban-American Barbara Lagoa is the first Hispanic woman to be appointed to the Supreme Court of Florida, one of the key states, on November 3. “These two women will not support women’s rights: the first talks about establishing the kingdom of God on earth and the second has close ties to the very conservative Federalist Society”, comments Marie-Cécile Naves.
The Federalist Society is one of the most influential conservative legal organizations in the country: it advocates an originalist interpretation of the Constitution of the United States, a literal reading that rules out accommodations related to developments in American society.
Democrats seek the parade
To counter the actions of the American President, the Democratic Senator Ed markey mentioned, on Twitter, a sea serpent: the enlargement of the Supreme Court, the number of which is not limited by the Constitution. There was already a precedent, in the XIXe century.
“Congress can adapt the size of the Court to its political desires”, confirms the site Politico, which cites the precedent of 1866, when Congress, in its standoff with President Andrew Johnson, reduced the size of the Supreme Court from nine to seven members. After the election of Ulysses Grant to the presidency in 1868, the number of judges was reduced to nine. In 1937, Frankin Roosevelt, faced with a Supreme Court hostile to his policies, had also considered increasing the number of judges of the Court, before giving up.
To risk it in 2020, it would be necessary not only for the Democrats to win the presidential election and win the Senate, but also to engage in some intellectual acrobatics: in July 2019, at the start of the Democratic primaries, Joe Biden s was opposed to such a maneuver. It was before the war of succession opened by the death of “RBG”.
