The country and the justice system lost a giant on Friday, with the passing of Supreme Court Justice Ruth Bader Ginsburg. Her legacy as a tireless advocate for equality under the law will live on. Ginsburg’s passing adds an unexpected and significant layer of complexity to the 2020 election season and to a Congress already starkly divided by partisan politics. This special edition of Policy and Politics reviews the Supreme Court’s nomination process and its potential implications not only for the court and the questions before it, but for the bitter election battles taking place for control of Congress and the White House.

How a Judge Is Nominated and Voted On
First, let’s go over how a judge is nominated and voted on. Every sitting president maintains a working list of potential nominees for the Supreme Court. Once the president nominates a candidate, the FBI vets the nominee with an intense background check and then the name goes to the Senate for a hearing. After the hearing – which can include arguments both for and against the nominee – the majority leader brings the nomination to the floor for a vote. Until 2017, 60 Senate votes were required to confirm a Supreme Court justice, but in 2017, Senate Majority Leader Mitch McConnell reduced the number of votes to 51, essentially ending the requirement for bipartisan support of Supreme Court justice nominees. Leader McConnell initiated this change largely in response to a 2013 decision by then Democratic Majority Leader Harry Reid, who lowered the number of votes to confirm circuit court and federal judges to 51.

Timing
We are less than six weeks from Election Day, November 3. Putting a Supreme Court justice nominee forth and confirming that nominee before the election will be a heavy lift, but it is doable. Both President Trump and McConnell are determined to make it happen. This is in contrast to McConnell’s refusal to put forth a nominee to fill the vacant seat in February 2016 following the death of Justice Anton Scalia. At that time, the election was ten months away. McConnell’s decision to refuse a nominee or schedule a hearing for Judge Merrick Garland, President Obama’s pick, was based on the so-called “Biden Rule.” In 1992, former Senate Judiciary Committee Chairman Joe Biden delivered a speech stating that in an election year, if the Senate and presidency are occupied by opposite parties, a Supreme Court nominee, hearing, and vote should take place after the election in order to give the voters a choice on which party they want to fill the seat. Remember that in 2016, the Senate majority was Republican and the president was a Democrat. (It was also the last year of President Obama’s second term as president, meaning he was without an incumbent advantage.) This year, both the Senate and the presidency are in Republican control. Not surprisingly – and despite criticism – McConnell has argued that this time is different and that it is okay to move quickly with a hearing and a vote.

Generally speaking, the Democrats have no power to stop McConnell from replacing Justice Ginsburg – either before or after the election. A nominee could be thwarted by dissenting Republican senators voting against the nomination. Currently, there are 53 Senate Republicans, and with a Republican administration, Vice President Pence can cast a tie-breaking vote if it goes 50-50. That means four Republican senators would have to vote “no” to the nomination in order for it to incur any delay. Two senators have expressed disagreement with holding a vote before November and could vote “no” – Senator Lisa Murkowski of Alaska and Senator Susan Collins of Maine. Three other potential “no” votes include Senator Mitt Romney of Utah, Chuck Grassley of Iowa, and Corey Gardner of Colorado. As it stands, the odds of getting to four dissenters and preventing the confirmation of the next Trump nominee are low, but with this Congress, anything can happen.

Although the Democrats have no power to stop the Republicans from speeding through a nominee, they do have the power to make the rest of the Congressional year a nightmare. They can stall and refuse to negotiate on the next COVID-19 relief bill (which is already stuck in the mud), and they could hold up any stopgap spending bill designed to prevent a pre-election government shutdown. As Senate Minority Leader Chuck Schumer said, “Nothing is off the table.”

What Issues Are on the Docket?
The Supreme Court returns from their summer recess on Monday, October 5. Cases before the court from October through December include drug reimbursement; the statute of limitations in prosecuting sexual assault in the military; deciding whether juveniles can be sentenced to life in prison without parole; and the legality of the Affordable Care Act (ACA) individual mandate and minimum coverage requirements. Worth noting is that a Supreme Court ruling against these two components of the ACA could vacate the bill and leave millions of people without healthcare.

Let’s not forget that another potential near-term issue the Supreme Court could face is a contested presidential election. In 2000, the Supreme Court decided who won the contested election between GOP candidate George W. Bush and Democrat Al Gore. Without Ginsburg or her replacement, the court is divided between 5 conservative justices and 3 liberal-leaning justices – and also susceptible to a 4-4 tie. If the GOP-controlled Senate is able to replace Ginsburg with a conservative judge nominated by Trump, the court’s conservative/liberal make-up moves to 6-3.

There is no way to know what could cause a contested election in 2020, but in 2000 the issue involved tallying votes in Florida and “hanging chads” – the little paper dots voters once pushed out to indicate their ballot selection. Votes were recounted repeatedly until the recount process was exhausted. The state’s vote tally remained indeterminate. The case on whether or not to continue recounts in Florida went to the Supreme Court, which ruled in favor of ending the process and thus awarded the presidency to Bush. Trump’s critics worry that in the event of a contested 2020 presidential election being decided by the court, any recent nominee would favor awarding him a second term. Others – including Trump supporters – argue that although judges are known to have conservative or liberal views when interpreting the law, the Supreme Court and its justices have been traditionally viewed as non-political and are sworn to adjudicate without bias or prejudice.

How Will This Affect the Election?
If the president and the Republican Senate are successful in appointing a new Supreme Court justice to replace Ruth Bader Ginsburg, it could work against them at the polls, motivating Democrats and their supporters to vote out the president and many vulnerable Republican senators. By contrast, if they wait until after the election, the issue could help motivate Republican voters in advance of November 3. Trump’s base of supporters is likely to show at the polls either way.

Future of the Senate
Ginsburg’s death has had immediate effect in the form of arguments over the fairness of voting in a new Supreme Court justice mere weeks from an election and holding up important legislation. However, tension has been building in the Senate for decades. It’s hard to imagine today that the Senate was designed to provide statesmanship and decorum to the US government. Over the past 40 years or so, we’ve instead seen tit-for-tat rule making and legislative tricks aimed at gaining political advantages – imposed by each party as majority control changes.

The Democrats are furious over McConnell’s determination to put forth a Supreme Court nominee for a vote and their utter lack of power to do anything about it. If they were to take back control of the Senate in November, some have been threatening drastic moves, including permanent removal of the Senate filibuster. This would eliminate any need for bipartisan compromise in the Senate’s lawmaking process. Other Democrats are suggesting that the number of Supreme Court justices be increased so they can appoint liberal justices and balance out the court’s ideology. Additionally, it has been suggested that Puerto Rico and Washington, DC each be afforded two Senate seats, which in the near term would likely mean an increase in Democratic Party representation in the Senate. Others have countered by arguing that moves to expand the Senate or the bench would set dangerous precedents for the future.
IMPORTANT INFORMATION
This material is provided for informational purposes only and should not be construed as investment advice.

There can be no assurance that developments will transpire as forecasted. Actual results may vary.

The views and opinions expressed may change based on market and other conditions. Unless otherwise noted, the opinions of the speakers provided are not necessarily those of Natixis Investment Managers or any of its affiliates.

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