Wow, the universe's writers are really going all-out for 2020!
I disagree strongly with RBG's politics in most areas, and I think that her tenure as Supreme Court Justice was very harmful, though I admire her tenacity. If I spend my last decades clinging to life and continuing to fight, with hundreds of thousands of my ideological adverseries hoping for my death and spitting on my grave after I die, then my life will have been an unbelievable success.
This probably actually hurts Trump, though it throws even more chaos into what was already likely to be an incredibly chaotic election. If Trump appoints someone before the election, then evangelical/conservative/libertarian Republicans will have less reason to hold their noses and vote for him, since yet another vacancy is no longer particularly likely. If Trump chooses not to appoint someone while he has the chance, then it
pisses off these same voters, since Trump definitely can appoint someone. Whoever he appoints will be tarred-and-feathered in the same way that Kavanaugh was, and the Democrats will use the appointment as way of enraging their base and getting them to turn out. IMO Biden's chance of winning goes up several percentage points due to RBG's death.
There are several paths Trump can take when picking someone:
- It'd be best for Trump if he can find some way of not appointing anyone, but making it look like the Democrats' fault. Not sure if that's possible. Failing that, his best option from the perspective of being reelected will be to pick someone very moderate and/or of absolutely unimpeachable character. Merrick Garland, for example. This isn't Trump's style, though...
-
I'd prefer that he pick another strict constitutionalist like Gorsuch. I've heard that Amy Coney Barrett would be a good choice from this perspective.
- It's probably most likely that he'll pick another member of the neocon establishment like Kavanaugh, since Trump is still surrounded by a lot of neocons. This will be bad for everyone.
- If he wants to throw all of his eggs in the "steal the election" basket, he'll pick someone who he's sure will be loyal. I don't know who on Trump's list most meets this criteria.
Unless the presidential election is a landslide, whoever loses is going to try to steal the election. Trump will claim that mail-in ballots are fraudulent, illegals voted, the deep state conspired against him, etc. Biden will claim that Trump was helped by Russia, and he will also dispute the premise of the electoral college. There are multiple ways that this chaos could unfold, but it's likely that the Supreme Court will get involved at some point, and having several loyal justices will give Trump the edge at this stage of the battle.
RBG was a loyal Democrat in the same way that Kavanaugh and Thomas are loyal Republicans, voting in their respective party's favor whenever they can get away with it, regardless of any actual legal considerations. Gorsuch is actually committed to textualism. John Roberts is
not a loyal Republican, and in controversial cases he will always cast his vote in whichever way defers to the executive or legislative branches the most. I'm not familiar enough with the philosophies of the others, though they usually vote along party lines in contentious cases.
If it looks fairly clear that Trump should not win, then IMO he'll get only two or three supreme court votes, including his new appointment. There has to be at least
some legitimate lack of clarity. But if for example it all comes down to a few states which can't decide internally who should get their electors, I could definitely see a 6-3 or 5-4 decision either picking the more Republican-favorable slates of electors or throwing out enough of the contested electoral votes to give the decision to a Republican-advantaged House/Senate. (Note: in the "House decides" scenario, the House votes weirdly, and Republicans would currently have it, though this could change, since it's the
incoming House/Senate.) With such a strong Court majority, it makes it much more difficult for Biden to steal the election if he loses, which he otherwise might've been able to do with Roberts' help.
This could get really crazy. We could see blood in the streets, threats of secession, etc. I think that Trump is too lazy/unambitious to do anything
too crazy like trying a coup after he'd already clearly lost, and modern Americans are as a whole too risk-averse to have anything very close to another 1861-style Civil War (c.f. the extreme risk-averseness evidenced in the coronavirus response), but this
could shape up to be the biggest internal conflict
since The Civil War. (That said, the most likely outcome is something more ordinary, since the vast majority of people
want something more ordinary.)
If widespread Democrat vs Republican violence does happen, I urge forum members to stay out of it. There's honestly not that much difference between how Biden or Trump will govern. Their administrations are or would be staffed mainly by the usual establishment types, their policies will be more-or-less the same sort of stuff we've seen over the last decades, neither of them
really represents your beliefs very closely, etc. I believe very much in fighting vigorously for what you believe in, but you have much to lose and almost nothing to gain for making
this the hill you want to die on. The strong emotions
here on both sides is mainly just irrational tribalism.
I would anticipate Trump quickly nominating a solid conservative before the election and the Senate to confirm her.
The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.
Everyone knew that that was bullshit which he'd flip on whenever it became politically convenient to do so. For this vacancy, he'll come up with some excuse to
"fill it", though I don't know why he even bothers with excuses, since both sides have basically abandoned any pretense of civility, consistency, or fairness at this point. If McConnel came out and said, "We're going to fill it this time because it's politically convenient. That's it.", hardly anyone would think any less of him because if it.
This doesn’t matter if the Harris-Biden ticket wins, and Democrats take over the Senate. If this happens, it is all but certain that the SC will be packed regardless of who gets confirmed this year.
Not sure if Biden would do it, but that is pretty likely at some point.