Less than one hour after the death of Supreme Court Justice Ruth Bader Ginsburg was announced, speculation began on Fox News about her replacement.
On Tucker Carlson Tonight Friday, Ned Ryun — the CEO of American Majority, an advocacy group that trains conservatives who aspire to political office — said he would advise President Donald Trump to nominate Amy Coney Barrett, who, he said, “I’m a big fan of; in fact, I prefer her over Kavanaugh ... I think she’d be a solid choice, she’s still in her 40s. She’s on the Seventh Circuit right now, has proven her conservative credentials.”
Fox News is already talking about possible replacements for RBG pic.twitter.com/cqmpJCJuvj— Acyn Torabi (@Acyn) September 19, 2020
The comments, while arguably answering a question looming large for many of Fox’s viewers in the wake of Ginsburg’s death, serve as a reminder of all that is at stake in nominating a new justice. And they are also a reminder of the hypocrisy of Republicans like Senate Majority Leader Mitch McConnell, who infamously held the late Justice Antonin Scalia’s seat open in an election year. At the time, he argued doing so would allow voters a chance to influence who was chosen. Following Ginsburg’s death, McConnell said this time around: “President Trump’s nominee will receive a vote on the floor of the United States Senate.” (He declined to disclose the timing of the vote.)
Whoever is nominated would have an outsize role in deciding policy for decades to come. As Vox’s Ian Millhiser has written, judges — particularly those on the Supreme Court — have been responsible for most of the US’s significant policy changes in recent years:
In an age of legislative dysfunction, whoever controls the courts controls the country. In the past decade or so — or more precisely, since Republicans took over the House in 2011 — Congress has been barely functional. You can count on one hand — and possibly on just a few fingers — the major legislation it has enacted.
Judges, by contrast, have become the most consequential policymakers in the nation. They have gutted America’s campaign finance law and dismantled much of the Voting Rights Act. They have allowed states to deny health coverage to millions of Americans. They’ve held that religion can be wielded as a sword to cut away the rights of others. They’ve drastically watered down the federal ban on sexual harassment. And that barely scratches the surface.
Adding a conservative justice to the Supreme Court would create a conservative majority on the Supreme Court, allowing the Republican Party to advance its objectives regardless of what happens in November’s election, or in elections for decades after that.
As the White House, Trump, and his campaign have pointed out, the president has been incredibly successful at appointing young judges — most are below age 50. Barrett follows this pattern, meaning were she to be appointed, she would likely be able to serve for at least a generation. And in that service, she could perhaps confirm suspicions that she would be willing to overturn precedent in a manner pleasing to conservatives.
Barrett has been a favorite of conservative Christian Americans for some time. As Vox’s Jane Coaston noted following Trump’s appointment of Brett Kavanaugh to the Supreme Court, many religious conservatives lamented that Trump didn’t choose Barrett instead, believing she would be more willing to end abortion protections by voting to overturn Roe v. Wade.
And as Dara Lind and Vox’s Dylan Matthews explained on The Weeds in 2018:
Barrett also argued that the birth control benefit in the Affordable Care Act impinges on religious liberty and that cases like Roe v. Wade might not need to stand as precedents if future courts judge them to be wrongly decided, and has mused in her academic work that “adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education.”
Trump’s likely appointment of a third Supreme Court justice is exactly what Democratic voters fear — and why Democratic leaders are calling on Trump and McConnell to allow the victor of the next election to decide who will fill Ginsburg’s seat.
And for many Democrats, comments like Ryun’s and McConnell’s Friday are a painful reminder that Republicans refused to allow a vote on President Obama’s Supreme Court nomination of Merrick Garland during the last weeks of his presidency, a strategy that resulted in the advancement of Neil Gorsuch, who has routinely voted with conservative justices during his brief time on the Court.
One thing is clear: Republicans and Democrats both see the election as the highest of stakes for the future of the Supreme Court.
“This is an opportunity,” Ryun said. “And I say they seize the moment.”
Correction, September 19: Due to an editing error, this article originally misidentified President Obama’s Supreme Court nominee; it was Merrick Garland.