Just how important is filling the Supreme Court vacancy before the general election? According to President Donald Trump, it could be crucial.
Fox News reports that President Trump on Wednesday predicted that the Supreme Court may end up deciding the outcome of the upcoming presidential election.
“I think this will end up in the Supreme Court,” Trump said. “And I think it’s very important that we have nine justices.”
Given what happened back in 2000 in the case of Bush v. Gore, the Supreme Court has likely learned its lesson and will avoid at all costs getting involved in another presidential election. But, the justices may not have a choice.
The simple fact is that, with vote-by-mail featuring prominently, the election is shaping up to be a disaster. Wisconsin has just become the latest battleground state in which a judge has ruled that absentee ballots can be counted up to six days after Election Day, as long as they are postmarked by November 3rd. The effect of such rulings will be delayed election results, which increases the likelihood of disputes.
With post-election day votes turning up here and there, shifting the outcome of the election, and with the nature of mail-in-voting, which heightens the risk of voter fraud, a legal question could arise that could end up in the Supreme Court. On this question, the outcome of the election could depend.
The vacancy will be filled
It is now looking very likely that not only will President Trump nominate a new justice, but the Senate will confirm this nominee.
Sen. Lindsey Graham (R-SC), the head of the Senate Judiciary Committee recently told Fox:
We’ve got the votes to confirm Justice Ginsburg’s replacement before the election. We’re going to move forward in the committee, we’re going to report the nomination out of the committee to the floor of the United States Senate so we can vote before the election. Now, that’s the constitutional process.
Indeed, a number of Republican senators have voiced their support for filling the Supreme Court vacancy before the election. Surprisingly, even Sen. Mitt Romney (R-UT), a key swing vote, has said that “If the nominee reaches the Senate floor, I intend to vote based upon their qualifications.”
Other key votes who have taken the same position as Romney are Sens. Cory Gardner (R-CO), Joni Ernst (R-IA), and Chuck Grassley (R-IA). Sens. Lisa Murkowski (R-AL) and Susan Collins (R-ME) are the only two Republicans to oppose moving forward, although Murkowski recently refused to rule out voting on Trump’s nominee.
A real conservative majority
In short, it looks like Republicans are going to have the simple majority needed to fill the vacancy. This will make the Supreme Court decidedly conservative with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Trump’s nominee, which doesn’t include Chief Justice John Roberts, who has been known to side with his liberal colleagues.
That’s one possibility. The other is that the vacancy is not filled. In this case, should a legal question about election results arise and should the eight justices split 4-4, the decision of the lower court would stand. Hence the president’s remark that “it’s very important that we have nine justices.”