The Memo: Court battle explodes across tense election landscape

A new, incendiary ingredient has been added to the explosive political atmosphere as Election Day looms.

The death on Friday of 87-year-old Justice Ruth Bader GinsburgRuth Bader GinsburgKatie Couric dismisses early coverage of book as 'strange, willful misinterpretation' Katie Couric says she felt 'betrayed' by Lauer after sexual assault allegations Couric defends editing of RBG interview MORE sparks an instant and ferocious fight over the Supreme Court. 

Ginsburg was the de facto leader of the court’s four-member liberal bloc and an icon to progressives. Her death clears the way for President TrumpDonald TrumpYoungkin ad features mother who pushed to have 'Beloved' banned from son's curriculum White House rejects latest Trump claim of executive privilege Democrats say GOP lawmakers implicated in Jan. 6 should be expelled MORE to nominate a successor in the final days of his first term.


Trump could lock a conservative majority in place on the court for a generation. The effect on some of the most divisive issues in American life, from abortion to corporate power to race relations, would be profound.

Democrats and liberal activists will strain every sinew to thwart him.

The political calculations around replacing Ginsburg are fraught.

Trump could proceed as quickly as possible in naming a successor, aiming for a Senate confirmation vote before Election Day on Nov. 3.

There is one big potential reward to that approach for the president — and a number of dangers.

The upside for Trump is that putting a third conservative justice on the court would demonstrate beyond doubt that he has delivered on one of his chief promises to social conservatives. 


He has already put two justices on the high court — Neil GorsuchNeil GorsuchAll eyes on Garland after Bannon contempt vote Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Justices weigh request for information on CIA's post-9/11 torture program MORE in 2017 and Brett KavanaughBrett Michael KavanaughLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Why Latinos need Supreme Court reform Feehery: A Republican Congress is needed to fight left's slide to autocracy MORE in 2018. Evangelicals who backed Trump four years ago, despite misgivings over his tumultuous private life, would feel richly rewarded if he added a third conservative, creating a 6-3 majority.

But it’s not quite as simple as that. 

Trump might gain even more electoral leverage if he held off from an instant nomination — or named his choice but allowed the Senate confirmation process to play out after Election Day.

Under this theory, he would be raising the stakes for his own reelection, dangling the prize of a third conservative justice before his voters. The prize would be guaranteed only if they came out in sufficient numbers to vanquish Trump’s Democratic opponent, Joe BidenJoe BidenOvernight Energy & Environment — Presented by American Clean Power — Methane fee faces negotiations White House rejects latest Trump claim of executive privilege The No Surprises Act:  a bill long overdue MORE.

There is a second advantage to the delayed approach: It spares Republican senators facing tough reelection fights from taking a hard vote before Nov. 3.

Such concerns are particularly relevant to Sens. Susan CollinsSusan Margaret CollinsFunding for victims of 'Havana syndrome' to be included in Pentagon bill  The Hill's Morning Report - Presented by Uber - Biden makes his pitch as tax questions mount Emanuel defends handling of Chicago police shooting amid opposition to nomination MORE (Maine) and Cory GardnerCory GardnerColorado remap plan creates new competitive district Protecting the outdoors: Three cheers for America's best idea Ex-Sen. Cory Gardner joins lobbying firm MORE (Colo.), who are among the most endangered GOP incumbents. Sens. Thom TillisThomas (Thom) Roland TillisSenate GOP signals they'll help bail out Biden's Fed chair GOP rallies around Manchin, Sinema Advocates frustrated by shrinking legal migration under Biden MORE (R-N.C.) and Joni ErnstJoni Kay ErnstDemocrat Mike Franken launches challenge to Grassley in Iowa Trump heads to Iowa as 2024 chatter grows Photos of the Week: Manchin, California oil spill and a podium dog MORE (R-Iowa) would also have their political lives complicated by a vote on a Supreme Court nominee.

Republicans can afford only three defections on any Senate confirmation vote, assuming Democrats march in lockstep against any Trump nominee. At least two GOP senators who do not face reelection this year, Lisa MurkowskiLisa Ann MurkowskiHouse passes bill to expand workplace protections for nursing mothers Democrats look for plan B on filibuster Senate will vote on John Lewis voting bill as soon as next week MORE (Alaska) and Mitt RomneyWillard (Mitt) Mitt RomneyIn Montana, a knock-down redistricting fight over a single line Trump-backed bills on election audits, illegal voting penalties expected to die in Texas legislature The Memo: Conservatives change their tune on big government MORE (Utah), could also buck the party line.

Murkowski has previously stated she would not want to confirm a Supreme Court justice in the immediate run-up to the presidential election. She cited her own party’s blockade of then-President Obama’s nominee, Merrick GarlandMerrick GarlandOvernight Defense & National Security — Presented by Boeing — US 'deeply alarmed' by reports of military takeover in Sudan Prohibit the actions of extremism, but bear with the rhetoric House Republicans call on Garland to rescind school board memo MORE, for much of 2016, following the death of Justice Antonin Scalia.

At that time, Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden says he's open to altering, eliminating filibuster to advance voting rights Pelosi says GOP senators 'voted to aid and abet' voter suppression for blocking revised elections bill Manchin insists he hasn't threatened to leave Democrats MORE (R-Ky.) argued that “the American people should have a voice,” via the imminent election, on any new justice. Trump won the election, and Garland never received a vote.

In a statement about an hour after Ginsburg’s death became public, McConnell indicated he would move ahead with any Trump nomination. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell pledged.

The wording left leeway for a vote that would be held after the election but before the new Senate is sworn in. 

Such a move would provoke Democratic wrath, however — especially if Trump loses the election. In that scenario, “lame duck” GOP senators would be handing an enduring legacy to a defeated president on his way out the door.


If that happens, all bets are off. 

Some Democrats, including former Hillary ClintonHillary Diane Rodham ClintonSuper PACs release ad campaign hitting Vance over past comments on Trump I voted for Trump in 2020 — he proved to be the ultimate RINO in 2021 Neera Tanden tapped as White House staff secretary MORE aide Brian Fallon, suggested on social media in the hours after Ginsburg’s death that their party should add new seats to the Supreme Court in such a situation. But that, in turn, would guarantee a furious counterreaction from conservatives, who would be outraged over an effort to pack the court.

Things have not reached that stage yet. But the battle lines are forming.

The Heritage Foundation, an influential conservative think tank, released a statement Friday calling for “the swift nomination and confirmation of a new justice.” 

On the other side, former Obama aide Tommy Vietor reported a huge influx of donations to a fund set up via Crooked Media to support Democratic Senate candidates. According to one Vietor tweet, almost $6 million surged into the fund between 5:30 p.m. Friday and 1:30 a.m. Saturday.

Obama himself released a statement close to midnight that paid tribute to Ginsburg before noting that the GOP blockade of Garland four years ago “invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.”


Obama added, “A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.”

The weeks ahead will ratchet up a political temperature that is already close to boiling point.

The most polarizing president of modern times is about to either win a second term or be ejected from office. 

The election will take place against the backdrop of a once-in-a-century pandemic that has claimed roughly 200,000 lives. The nation is beset by economic challenges and roiled by racial tensions.

Now, a pitched battle between polarized political tribes over the high court is underway. 

There are choppy waters ahead.

The Memo is a reported column by Niall Stanage, primarily focused on Donald Trump’s presidency.