Al Drago / The New York Times

President Donald Trump announces Judge Amy Coney Barrett as his Supreme Court nominee on Saturday. Cornell law professors weighed in on what the Supreme Court vacancy means for the nation as the 2020 election approaches.

September 29, 2020

Cornell Law Professors Discuss Implications of New Supreme Court Pick

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The scramble to fill the Supreme Court vacancy left by late Justice Ruth Bader Ginsburg ’54 has ignited a national discussion — and Cornell has become entrenched in it.

Cornell’s involvement was inevitable: Not only is Ginsburg one of its most celebrated alumni, but Kate Comerford Todd ’96 was among those President Donald Trump initially considered to fill the seat.

On Saturday, however, the president nominated Judge Amy Coney Barrett of the United States Circuit Court of Appeals for the Seventh Circuit in Chicago to replace Ginsburg.

The nomination comes just weeks before the 2020 presidential election on Nov. 3. Despite the closeness between the nomination and the upcoming election, filling a Supreme Court vacancy during an election year is not an unprecedented move.

President Barack Obama nominated Judge Merrick Garland to fill the vacancy left by Supreme Court Justice Antonin Scalia in March 2016, also an election year. However, the Republican-controlled Senate refused to confirm Garland, arguing that the seat should be chosen by the elected president.

“There was no rule regarding the filling or not filling of Supreme Court vacancies during an election year prior to the Republican Senate’s refusal to consider Merrick Garland in 2016,” said Prof. Michael Dorf, law. “That is really because Supreme Court vacancies happen [so] infrequently that you can always — depending on how you characterize the past practice — come up with some account of what you’re doing that makes it seem like it is consistent with the past practice.”

Unlike in 2016, however, Republicans now control the White House and the Senate.

“There are many instances of presidents filling a Supreme Court vacancy in an election year where the president’s party also controlled the Senate,” said Prof. William Jacobson, law. “That is the situation here, unlike when President Obama nominated Merrick Garland.”

Senate Majority Leader Mitch McConnell (R-Ky.) has indicated that he is looking to confirm Barrett before the election takes place. Barrett’s confirmation hearing is set to start on Oct. 12, which would put the confirmation vote on schedule for Oct. 26, less than a week before the election.

Even before the death of Ginsburg, Supreme Court appointments were a salient voting issue for Americans in 2020. While in the past Republicans have generally energized their voter base around the issue of filling courts, polling shows that Democrats care about the courts more in the 2020 election year. It is unclear how the ongoing nomination process will affect voter turnout this year.

“It is uncertain to me whether this motivates the Democratic or Republican base to a greater extent,” Dorf said. “The initial reaction, a spike in donations to Democratic candidates, suggests that it would have a greater effect on Democratic turnout, but I’m not a political scientist, I’m a law professor, so I can’t say anything too confidently about that.”

Jacobson, on the other hand, predicts that Republican voters will mobilize more than Democrats around this issue.

“The Supreme Court traditionally has been more important to conservative voters, and energized support for Trump in 2016,” Jacobson said. “I expect a similar impact this time in driving Trump voter turnout to a much greater extent than drives Biden voters.”

While public trust in the government has generally declined, Americans still place the greatest faith in the judicial branch. However, with the Supreme Court nomination of Barrett embroiled in partisan politics, the impact of a potential confirmation on public trust in the judiciary remains to be seen.

“The Court’s popularity, or people’s faith in it, tends to depend very closely on the substantive decisions it makes,” Dorf said. “Public opinion about the Supreme Court is highly politicized in the same way that everything else is. And that has been true for a very long time.”

Prof. Aziz Rana, law, also sees the question of public trust as a persistent issue for the judiciary.

“Already, there have been questions about what the future of the court is going to be, and a lot of this has to do with the fact that the court is increasingly being seen as an obvious site of political struggle among the parties,” Rana said. “This is only going to further intensify it.”

Before Justice Ginsburg’s death, the court was composed of four Democratic appointees and five Republican appointees. The confirmation of Barrett by Trump would shift the makeup of the court to three liberal appointees and six conservative appointees.

According to Rana, this conservative shift is a part of an ongoing historical trend that will have massive implications for future rulings.

“As it is, the courts, in my view, have moved pretty decisively to the right in ways that are inconsistent with where the American political center is, and I think this is only going to make it more extreme,” Rana said. “In the context of our Supreme Court, with only nine justices, one appointment can have massive ideological effects”

Senate Democrats, who are in the minority, wield little power to impede the confirmation of Barrett. Nevertheless, the party has floated a variety of other possible retaliatory actions to stem the power of a conservative court, such as expanding the size of the court, admitting Puerto Rico and Washington D.C. as states and eliminating the legislative filibuster. Republican Senators previously eliminated filibuster power for Supreme Court nominees in April of 2017 in order to confirm Justice Neil Gorsuch.

Jacobson does not expect many of these proposals to come to fruition. In his view, a court expansion and the addition of states is unlikely. If Democrats gain control of the executive branch and both chambers of Congress, the elimination of the filibuster is a more viable option.

“But even that is less likely than it seems, because Democratic Senators know if they do that, when Republicans eventually gain control in some future election, Republicans could do the same,” Jacobson said. “This mutually-assured legislative destruction will temper demands to eliminate the legislative filibuster.”

Rana said that the contentious political episode unfolding with the court has exposed deeper structural issues within the institution. With these issues once again resurfaced, he predicts that there will be a broader national discussion about these flaws.

“The discussion for court reform has been here before the passing of RBG,” Rana said. “But if it continues in this direction where Democrats are winning elections but policies are being undermined by the institutions that are the least democratic, you are going to have a big conversation about court reform.”