With the virus gripping the GOP, Trump and the Republicans now look to the Nomination of Amy Coney Barrett to save them from Electoral Oblivion.
In 2016, after the passing of Justice Scalia, Senate Republicans set a new precedent: No Supreme Court nominations in an election year. Democratic Sen. Elizabeth Warren recently reminded this to the Republicans. Directly and unashamedly contravening their own rule, Amy Coney Barrett, Trump’s Supreme Court Nominee, will be the likely successor to the late Justice Ruth Bader Ginsburg.
A 2016 report by the New York Times mentioned the “Thurmond Rule”, which states that a judicial nominee should not be appointed during an election year, although it was never legally ratified. Moreover, there is no single manner to determine the applicability of the rule in terms of the number of days. This non-statutory and undocumented rule is associated with U.S Senator Strom Thurmond who opposed Associate Justice Abe Fortas’ nomination in 1968 on the premise that President Lyndon Johnson was a lame-duck President. Republicans argued against President Barack Obama’s Supreme Court nomination in the last year of his Presidency citing the aforesaid incident in 2016.
Trump indisposed, GOP pins faith on Amy Coney Barrett to save the election.
Past Precedents of Judicial Nomination in Election Year
Presidents in the past have continued to appoint judicial nominees during election years, with Senate confirmation. Back in 1956, just two months before the election, President Dwight D. Eisenhower appointed William J. Brennan Jr. who served on the New Jersey Supreme Court; In 1968, again during an election, President Lyndon Johnson moved to elevate Associate Justice Abe Fortas. But the appointment was blocked citing the President’s lame duck status. In 2016, The Obama Administration nomination of Judge Merrick Garland was blocked owing to it being an election year, by the Republicans.
Between 1796 and 1968, there were 19 occasions when Presidents sought to fill a Supreme Court vacancy in an election year. This was out of the 29 times that the Supreme Court vacancy existed in an election year.
Out of 29 times that a Supreme Court vacancy opened up in an election year 1796 and 1968, the sitting Presidents sought to fill them on 19 occasions.
Looking at the political considerations, in all these 19 times but one, the President’s party was in control of the Senate. And on the one occasion when the Senate was controlled by the Opposition party, yet the judge’s nomination went through, was 1888. This happened during the tenure of President Grover Cleveland, when he nominated Chief Justice Melville W. Fuller in election year. Experts in the field cite President Abraham Lincoln’s decision to retain the vacancy created by the death of Chief Justice Roger B. Taney in 1864 until 27 days prior to the election.
In contrast, in an unprecedented move, President Trump has simply rushed in to nominate Amy Coney Barret before the November 3rd election. Justice Barrett matches up with Trump’s policies on crucial issues such as pushing back on Immigrant and LGBTQ rights, making Abortion illegal and, ending Obamacare. Her nomination is also the key to propping up support among his conservative base. Moreover, President Trump is hoping to garner support in the event of adverse election results in November.
Justice Barrett matches up with Trump’s policies on crucial issues such as pushing back on Immigrant and LGBTQ rights, making Abortion illegal and, ending Obamacare.
It will certainly be a long shot for Democrats to stall the process and restrict President Trump from fulfilling his ambition to remain in power for another four years. Also, the entire process of her “politically-motivated” nomination might take the Court into a political space it has never occupied.
Trump wants Amy Coney Barrett to Seal his Victory, but Experts have their doubts
Forced into isolation by the dramatic revelation he has contracted Covid-19, widely panned for his debate performance, and behind in the polls, Trump, and his Republican allies, are plowing ahead in their efforts to seat Amy Coney Barrett on the Supreme court, in the hope it will rouse a skeptical conservative base into coming out for him at the polls and averting a disaster on election day. Moreover, a legal fight would be their last resort in the face of dwindling fortunes.
“It is definitely a blow to Democrats, but it is really not certain whether Justice Barrett would give too much of an advantage to President Trump,” says Dr. Tylor Brand, Assistant Prof. in Modern Middle Eastern History at Trinity College, Dublin. “Trump is hoping that if he refuses to accept the election results, he will have the backing of the Supreme Court in a legal fight. But several conservative justices are constructionists, which means they will not be inclined to support what they think violates the text of the Constitution. Chief Justice John Roberts and Justice Neil Gorsuch both recently ruled against what might be considered conservative interests for “legal philosophical reasons”.
Watch: Impact of Amy Coney Barrett’s Supreme Court nomination on US Election
In 2018, Chief Justice John Roberts wrote “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” adding that judges did “their level best to do equal right to those appearing before them,” and ruled against the present administration, emphasizing the independence of judiciary.
So, if Justice Amy Coney Barrett sees President Trump’s decision as overstepping the powers of Presidency as outlined in the Constitution, she might make an independent decision. “Just because he has appointed Justice Barrett, does not mean she is obliged to follow him blindly as a ‘stooge’”, adds Dr. Tylor.
“Just because he has appointed Justice Barrett, does not mean she is obliged to follow him blindly as a “stooge”Dr. Tylor Brand, Assistant Professor, Trinity College, Dublin
Interestingly, the Republican National Committee is planning a $10 million ad-campaign to promote the credentials of Justice Amy Coney Barrett. So, it remains to be seen whether Donald Trump makes capital out of the government and the Court mechanisms to keep himself in power. If Trump is clearly hoping that Barrett’s seat on the Court will safeguard him in the aftermath of the November 3rd Presidential election result, then 2020’s Presidential elections shall go down as the most controversial in modern times.