Ruth Bader Ginsburg's death sparks political firestorm

Hundreds of people visit the US Supreme Court to pay their respects to the late justice

By Anthony Zurcher
North America reporter
@awzurcher

Ruth Bader Ginsburg's death marks the passing of a liberal icon on the US Supreme Court, the loss of a jurist heralded by the left in the US for her passionate advocacy of women's rights, civil liberties and the rule of law.

Memorials and tributes to her, however, threaten to be overshadowed by the political firestorm that her death - and the resulting vacancy on the highest court in the US - will set off just 46 days before the presidential election.

Here's what you need to know about what might happen next and why the stakes are so high.

Will Trump nominate a replacement before the election?

Donald Trump could now have the opportunity to make a third lifetime appointment to the nine-justice Supreme Court, a remarkable chance to leave a lasting imprint on American law and politics in only his first term in office.

It appears certain the president will try - either before the November's election or after. And, if the Republicans lose, a confirmation could take place during a Senate "lame duck" session later in the year, before a new Congress and president take office in January.

Trump and Biden react to Ginsburg death

Any attempt to fill the seat this year will prompt cries of hypocrisy from Democrats. They remember Republicans - including Senate Majority Leader Mitch McConnell - blocking Democratic President Barack Obama from filling a 2016 Supreme Court vacancy for nearly a year, until Trump could name a replacement in 2017.

At the time, Republicans said it was important for voters to express their opinion at the polls before a new justice was confirmed. McConnell, and some other Republicans, have since said that such a rule shouldn't apply when one party controls both the presidency and the Senate - which, conveniently, is the situation at the moment.

Would a Trump nominee get confirmed?

It could come down to a question of maths - and timing.

Republicans have 53 Senate seats, and need 50 votes to confirm a nominee. Already two Republicans - Susan Collins of Maine and Lisa Murkowski of Alaska - have said they support allowing Joe Biden to name the next justice if he were to win in November.

The pressure - from both sides - on Republican senators in tight re-election campaigns, nervous of angering moderate constituents or displeasing their base, will be extreme.

Justice Ginsburg spoke to the BBC in December 2019 about access to abortion

Republicans could avoid some of this pressure by waiting until after the election. Given that senators want to campaign, it would be difficult to schedule hearings and a vote before then, anyway. If they wait and Biden and the Democrats win, however, Democratic fury will be even greater, as they accuse Republicans of directly subverting the will of the people.

Why does it matter who is on the Supreme Court?

The situation is politically fraught not just because of the timing of Ginsburg's death, but also because the legal stakes are so enormously high.

If Trump does name a replacement, a likely candidate is circuit court judge Amy Coney Barrett, who was also under consideration by the president for the two previous vacancies. If she, or someone like her, filled Ginsburg's seat, it would move the ideological balance of the court sharply to the right.

Narrowly decided court rulings on abortion rights, immigration and presidential power that liberals celebrated earlier this year would instead be conservative victories.

The outcome for upcoming cases on healthcare and same-sex adoptions, as well as possible issues like gun control, voting rights, criminal procedure and religious freedom could be very different with a solid 6-3 conservative majority on the court.

Will it help Trump or Biden in the presidential election?

Up until now, the presidential race between Trump and Biden has been remarkably stable, given the economic and social upheaval that has resulted from the coronavirus pandemic and protests over police brutality and institutional racism.

The Democrat has enjoyed a modest but comfortable lead over the president in national polls and those in many key swing states, suggesting that many Americans had settled on how they would vote.

Who's ahead in national polls?

DEMOCRAT

BIDEN

52%

REPUBLICAN

TRUMP

44%

average voting intention based on individual polls

Date
BIDEN
TRUMP
Nov 02 52 44
Nov 02 52 44
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Sep 07 50 42
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Sep 05 51 43
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Sep 01 50 42
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Aug 31 50 42
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Aug 14 50 42
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Aug 10 50 41
Aug 09 49 41
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Aug 06 50 41
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Aug 03 50 42
Aug 02 50 42
Aug 01 50 42
Jul 31 50 42
Jul 30 50 42
Jul 29 49 41
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Jul 27 50 42
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Jul 12 51 40
Jul 11 49 40
Jul 10 49 40
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Jul 08 49 40
Jul 07 50 41
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Jul 06 49 41
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Jun 28 49 41
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Jun 18 51 41
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Jun 16 50 41
Jun 15 49 41
Jun 14 50 42
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Jun 06 49 42
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Jun 04 49 42
Jun 03 49 42
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Jun 02 48 41
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May 18 49 44
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May 15 49 44
May 14 49 43
May 14 49 43
May 13 48 43
May 12 47 43
May 11 48 43
May 10 48 43
May 09 47 42
May 08 48 42
May 07 48 42
May 06 48 42
May 05 48 42
May 04 48 42
May 03 47 42
May 02 48 42
May 01 48 42
Apr 30 48 42
Apr 29 48 42
Apr 28 48 42
Apr 28 48 42
Apr 27 49 42
Apr 26 49 42
Apr 25 49 42
Apr 24 48 42
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Apr 15 48 42
Apr 14 48 42
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Apr 10 48 42
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Apr 06 49 42
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Apr 05 48 43
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Apr 01 49 44
Mar 31 49 45
Mar 30 49 45
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Mar 27 49 45
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Mar 25 49 44
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Mar 23 50 44
Mar 22 50 44
Mar 21 52 42
Mar 20 52 43
Mar 19 52 43
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Mar 17 52 42
Mar 16 52 43
Mar 15 52 43
Mar 14 52 43
Mar 13 52 43
Mar 12 52 43
Mar 11 51 43
Mar 10 50 43
Mar 09 51 42
Mar 08 51 42
Mar 07 50 43
Mar 06 49 45
Mar 05 49 45
Mar 04 49 45
Mar 03 49 45
Mar 02 49 45
Mar 01 50 45
Feb 29 50 45
Feb 28 50 45
Feb 27 50 44
Feb 26 50 45
Feb 25 50 45
Feb 24 50 45
Feb 23 50 45
Feb 22 50 45
Feb 21 50 44
Feb 20 50 44
Feb 19 50 44
Feb 18 50 44
Feb 17 51 44
Feb 17 51 44
Feb 16 50 44
Feb 15 50 43
Feb 14 50 43
Feb 13 50 43
Feb 12 50 46
Feb 11 50 44
Feb 10 50 44
Feb 09 50 44
Feb 08 49 44
Feb 07 49 44
Feb 06 49 44
Feb 05 50 46
Feb 04 50 45
Feb 03 50 45
Feb 02 50 45
Feb 01 50 44
Jan 31 50 44
Jan 30 50 44
Jan 29 50 44
Jan 28 50 44
Jan 27 50 45
Jan 26 50 45
Jan 25 50 45
Jan 24 50 46
Jan 23 50 46
Jan 23 50 46
Jan 22 50 44
Jan 21 51 45
Jan 20 51 45
Jan 19 51 45
Jan 18 48 46
Jan 17 48 46
Jan 16 48 46
Jan 15 48 46
Jan 14 48 46
Jan 13 48 46
Jan 12 48 46
Jan 11 48 46

30 days until Election day

The BBC poll of polls looks at the individual national polls from the last 14 days and creates trend lines using the median value, i.e. the value in the middle of the set of numbers.

See individual polls

Ginsburg's death, however, injects a new level of uncertainty into the race.

The 2016 Supreme Court vacancy helped solidify conservative support behind Trump - particularly evangelicals who saw an opportunity to roll back abortion rights. Surveys suggested more voters on the right turned out because of the Supreme Court issue than liberals did, giving Trump what could have been a critical advantage in a narrowly decided election.

There is the possibility that a vacancy on election day in 2020 could have a similar effect. Or, if Republicans fill the seat by then, it could remind those on the right why they should stick with Trump despite all the turmoil, self-created and otherwise.

The Washington Post/Getty Images

Ginsburg with Senators Daniel Moynihan (left) and Joe Biden in 1993

On the other hand, Democrats, who were so devoted to Ruth Bader Ginsburg that they bought "RBG" action figures, watched films and documentaries about her and fretted over each new health crisis, could be even more motivated to vote to preserve her legacy. If Ginsburg's death ticks up enthusiasm among younger or less reliable voters, it could be Democrats who reap the electoral rewards.

It's a thicket of unknowns, but in a race that was tilting toward Biden, any change in the existing dynamics is good news for Trump.

How might Democrats retaliate?

One thing is clear, however, and it's that rage will consume the left if Trump succeeds in replacing Ginsburg - particularly if Biden and the Democrats prevail in November.

Already there's talk of political retaliation if Republicans push through their nominee. A few of the more obvious moves, once considered extreme, are already being mentioned - ending of the Senate legislative filibuster that allows a minority in the chamber to thwart the will of the majority; adding new seats to the Supreme Court; and offering statehood (and congressional representation) to the District of Columbia and Puerto Rico, among them.

2020 has been a trying year for America - politically, socially and culturally. One way or another, there is now a Supreme Court battle in the works, one that is sure to be as vicious and hard-fought as any in modern memory.

If the fabric of national cohesion hasn't been tested already, it will be.