Front Burner - Supreme Court vacancy a game changer for U.S. election

Episode Date: September 21, 2020

Just six weeks before Americans vote for their next president, the death of legendary Supreme Court Justice Ruth Bader Ginsburg has left a gigantic hole on the U.S. top court. Today, CBC’s senior Washington editor Lyndsay Duncombe explains how the vacancy has ignited a fight for legal dominance that could shape the election’s outcome and the country for decades.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Josh Bloch. Ginsburg was a hero, an icon. I think she's such a great example for women. And I didn't realize I was going to be as emotional as I am, but it's a really tough loss. Just six weeks before the U.S. takes to the polls,

the death of legendary Supreme Court Justice Ruth Bader Ginsburg has left a gigantic hole on America's top court and ignited a fight for legal dominance that could shape the country for decades. Her death gives President Donald Trump a chance to expand the U.S. Supreme Court's conservative majority. Democrats are absolutely incensed at the possibility of this being pushed through. And this Supreme Court could be called upon to make decisions about the presidential election. CBC's senior Washington editor, Lindsay Duncombe, has been following closely, and she's here to explain.

This is Frontburner. Hello, Lindsay. Hi there. So last time we spoke, it was a few weeks ago, and we agreed that given how crazy this year has already been, that we were definitely due for a number of other surprises in the lead up to the election. This seems like it's one of those surprises, and it's not even October. It's only been a couple days since news broke, but how would you describe the reaction to Ruth Bader Ginsburg's death?

Well, I think that there is real grief at the loss of a woman who had such an impact on equality in this country. And obviously, you saw that with the crowds that spontaneously went outside the Supreme Court. She respected everybody and everybody's ideas and everybody's beliefs. A woman who was such a powerful voice for women and minorities. You know, my daughter's standing over there and we came in from Baltimore because I really wanted to pay my respects. And we came in from Baltimore because I really wanted to pay my respects. But I think you also heard it in the president's voice when he found out about her death from reporters just after a campaign rally on Friday. She just died. She led an amazing life.

What else can you say? She was an amazing woman, whether you agreed or not. Ruth Bader Ginsburg didn't just lead the fight to make women equal to men in the eyes of the law in the United States. It was a struggle that she lived. She was just one of nine women in her law school class at Harvard. My family had grave misgivings because we wanted to hire a lady lawyer in those days. Graduated the top but couldn't get a job. 41 firms rejected her. She turned to teaching, eventually worked with the ACLU. The other part of it, though, is she had this quiet, sharp, argumentative style,

this meticulous preparation. One of the quotes that I've seen going around a lot is Ruth Bader Ginsburg saying, fight for the things that you care about, but do it in a way things that you care about, but do it in a way that will lead others to join you. Which seems so contrary, really, to the intense partisan division that's in this country right now. You know, I know we want to get into the election, but I just want to tell you that I went to a book reading when the book that was based on the blog Notorious RBG came out and it was packed, packed with young women who were describing Ruth Bader Ginsburg as their hero. She just like is who she is. She's very confident, very aware of herself. She believes in what she believes in and she's going to say it. She's not worried about what

people think about her. And there's a new restaurant that's opening up in a hotel not far from where I live. I poked my head in and one whole wall is a picture of Ruth Bader Ginsburg. There are murals all throughout D.C. This is an iconic figure. And certainly her death will motivate Democrats to turn out in this election. Her death will motivate Democrats to turn out in this election. Yeah, right. I was in New York for Halloween last year, and I saw at least a few Ruth Bader Ginsburg costumes. I mean, she had become such an icon. How big a loss is this for American progressives? I mean, in terms of what she represented. It's a devastating loss.

Tell me why you're here today. I owe it out of gratitude and respect for a woman who changed everything. Sorry, I can't keep it together. And it's devastating to say goodbye to someone who had achieved so much. But the real devastation comes in what it could mean for progressive pauses going towards the Supreme Court, the makeup of the Supreme Court and the upcoming election. Yeah, I mean, I want to ask you about the upcoming election. I mean, just how much does Ginsburg's death change the stakes heading into the 2020 US presidential election? Consider how high the stakes were already being presented to voters at both conventions.

You heard Barack Obama saying to voters that American democracy, the foundation of American democracy is at stake. This administration has shown it will tear our democracy down if that's what it takes for them to win. There were similarly dire warnings on the Republican side. for them to win. There were similarly dire warnings on the Republican side. This election will decide

whether we save the American dream or whether we allow a socialist agenda to demolish our cherished destiny. Now multiply that intensity tenfold. So President Donald Trump came out almost right away. He made it very clear that he wants to fill this seat before the election. He said on Saturday that he'll be putting forth a nominee this week and that it will be a woman. Who would rather have a man on the Supreme Court? Well, you, the man, it's...

Who would rather have a woman on the Supreme? What does the vacancy mean to conservatives in the U.S.? It really is, Josh, the culmination of efforts by the Republican Party and conservative groups and activists in the United States to shift the American judiciary largely and the Supreme Court specifically. And those efforts have been going on for decades and decades. And now they're on the verge of achieving that goal, a solid conservative majority in the court that could last for a generation. It would mean a 6-3 split of conservatives to liberals should Donald Trump

achieve this nomination and achieve a confirmation. Right. When Ginsburg was alive, there was already a split between five conservative justices and four liberal justices. This would mean six conservative justices versus the three liberal justices. Yeah. And currently now we're in a situation of five, three until that vacancy is filled. What would this definitive shift to the right mean in terms of upcoming Supreme Court cases? Well, consider Josh Obamacare. There is a hearing scheduled before the Supreme Court on November 10th, and it's challenging the Affordable Care Act, the signature piece of legislation of the Obama era, potentially having a consequence

of taking away benefits from people who are protected by Obamacare. And there are also, benefits from people who are protected by Obamacare. And there are also, of course, the inevitable battles over access to abortion, climate change, and immigration. A conservative court could rule against a progressive government should there be one on some of these key issues. And in a way, if we look at where public opinion is on many of these issues, including abortion, including climate change, it could pit the makeup of the court in a way that is increasingly different from the way the majority of Americans view particular policy issues. And then let's talk about a big concern for Democrats here. What a very Donald Trump-friendly Supreme Court might mean in the case of a contested presidential election result. What could happen?

Well, just remember 2000 and Bush versus Gore, who decided who got to be president essentially in that case. And it was the role of the Supreme Court. Seven justices of this court have agreed that there are constitutional problems with the recount ordered by the Florida Supreme Court. Clearly, it looks like it's all over for Al Gore at this point. While I strongly disagree with the court's decision, I accept it. And even before all this happened, there was lots of speculation that we could be in a close election going down a similar road. And one of the reasons for that is the pandemic and the fact that many Americans plan to vote by mail, something the president has already tried to undermine repeatedly. There is a scenario,

which I think we talked about when we were talking with Paul a couple of weeks ago where on election night, because the in-person voting means to Donald Trump, it looks like there's a Trump victory. But then it is in the aftermath when the additional mail-in votes come in that we actually see a shift to a Biden victory. And in a scenario like that, you could well be headed right to the courts. And again, that's why one of the reasons why I think we're seeing an increased effort from Republicans to try to fill that seat. And there's already been a number of cases that have gone before the courts to do with this election. I mean, the New York Times called this the most litigated election ever. And the pandemic has something to do with that as well. The fact that voting is going to look different, but there are lots of other reasons why in these

tight battles, issues around voting are showing up in court and potentially some of those issues could go to the Supreme Court. We're going to have a victory on November 3rd, the likes of which you've never seen. Now we're counting on the federal court system to make it so that we can actually have an evening where we know who wins. OK, not where the votes are going to be counted a week later, two weeks later. So what would it take for the Republican-led Senate to confirm Trump's pick? I mean, do they have enough votes right now to do that? In order to confirm a Supreme Court justice, you just need a simple majority. And if you look at the makeup of the Senate right now, there are 53 Republicans to 47 Democrats. So the Republicans can afford to lose three votes and still confirm a justice. That would be with Vice President Mike Pence

breaking the tie. And it looks like this weekend, though, that they have already lost two of those votes. That's Lisa Murkowski of Alaska and it is Susan Collins of Maine. Part of the calculation here isn't just the presidential election. It's the fact that a handful of these senators, including Mitch McConnell, the Senate majority leader, including Susan Collins of Maine, they are in election fights to keep their jobs. And so that calculation also goes into how they plan to vote. And what Murkowski and Collins said is that they don't want a new Supreme Court justice confirmation vote to happen until the election is over and the president has been decided. history here, too, right? Because, of course, it was in 2016 when Mitch McConnell refused to take hearings on a Barack Obama appointee, Merrick Garland, in an election year. Of course, the American people should have a say in the court's direction. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, Lindsey Graham said, let's let the next president, whoever it might be,

make that nomination. And you could use my words against me and you'd be absolutely right. We're setting a precedent here today. Republicans are. In that case, there was nine months before the election happened. And now we're talking about just 45 days. So the other question about is there another senator that might decide to uphold that precedent set by the Senate? So then you look to Mitt Romney from Utah, who was the only person to vote to impeach the president, or Chuck Grassley, who was the former chair of the Judiciary Committee. And I know this gets a bit complicated, but I want to throw another scenario out there that affects the numbers. And that is what's happening in Arizona right now. Because in Arizona, the Democrat is leading in the polls. Arizona is a shifting state. This is a

very popular candidate. Mark Kelly. He is a former astronaut. He's married to Gabrielle Giffords, the congresswoman who was shot and has become a real gun control advocate. So Mark Kelly is leading in the polls right now. But it's a different situation in Arizona because this is a special election to fill a vacancy that had been filled by appointment. So Kelly could potentially be part of the counting equation, potentially as a Democrat, even in a lame duck session, which when the numbers are this close, is something that might potentially make a difference. Just to be clear, because the Republicans might decide to not confirm Trump's choice before the election, but even if Trump loses, there will be a period of

time before Joe Biden were to take office were he to win, where they could still confirm Trump's choice. Yeah, because they'll still have control over the Senate. And all you need is a majority, simple majority to confirm a Supreme Court justice. So you could have a case with, you know, a progressive wave of people coming out to support Joe Biden. We could have the Senate change hands. And still, it would be possible to confirm a conservative justice. Trump says he's going to name someone this week. We haven't chosen yet, but we have numerous women on the list. A couple names have been floating around.

Who seems to be on Trump's shortlist right now? Well, as you mentioned, he said it would be a woman. And there's one woman who has been spoken about in terms of the first two previous confirmations that Donald Trump was responsible for in his presidency. And that is Amy Coney Barrett. She is someone who is young. She's just in her late 40s. She's Catholic.

That would be something that those evangelical voters who are very keen to see abortion laws change in this country, to make abortion illegal, that would be something that they would like. In a 2016 discussion, she said she could envision the scope of abortion rights changing. I don't think the core case, the Rose core holding that women have a right to an abortion, I don't think that would change. But I think the question of whether people can get very late-term abortions, how many restrictions can be put on clinics, I think that would change. But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics, I think that would change. And there's also another name, Barbara Lagoa. She is Hispanic. She's of Cuban origin. She's from Florida. And again, you see in both of those scenarios, we're talking about potentially someone that appeals to evangelical voters. We're talking about someone who potentially appeals to Florida voters.

The electoral calculation there is hard to ignore. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections. Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people

and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income? That's not a typo, 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. So obviously the Democrats are arguing that the Supreme Court

vacancy should not be filled until after the election. What does Senate Minority Leader Chuck Schumer mean when he said that nothing would be off the table if the Republicans move forward with the confirmation? Well, think back to that scenario that we described just a second ago, where you would have Biden in as a president-elect and a confirmation go through. What options then do Democrats have to try to shift the power balance on the court? That's when we get into the discussion of what's called packing the court or expanding the court. Essentially, just putting more judges, in this case, liberal judges on the court so that you have a different division, one that may be more favorable to the party in power.

That's never happened before. FDR considered it in trying to pass portions of the New Deal to deal with the Depression. The court has been acting not as a judicial body, but as a policymaking body. as a judicial body, but as a policymaking body. We have, therefore, reached the point as a nation where we must take action to save the Constitution from the court and the court from itself. Joe Biden, who is someone who obviously makes his appeal to moderate voters, has resisted this idea, but circumstances change. So that's one of the

things that's being discussed, even if it's just academically at this point. The other issue is some real fundamental ways of shifting the power balance in this country, should there be, should Democrats have the power to do that after the election? And that would mean granting statehood to leaning Democratic places such as Washington, D.C. and Puerto Rico. What that would do is, again, change the power balance, change the power balance in the Senate away from the Republicans and towards the Democrats. I also understand that they have considered changing the way that filibustering works in the Senate. I mean, how would that change the way that the Senate makes law? Well, right now, in many cases, 60 votes are needed for a law to progress. And the exceptions to that are when it comes to judicial appointments and Supreme Court appointments. One of the things that's being discussed is should the Democrats win the Senate, should they get rid of that filibuster rule, that 60 vote threshold altogether? What that would do is make it easier for a party to pass legislation in this incredibly

divided lock jam situation. But it would also take away really any hope of people working together to find something that kind of meets in the middle so that there's bipartisan agreement, which was the whole purpose of that threshold. And I guess for the Democrats, they have to really consider, too, if they were to follow through with those kind of moves, like adding justices to the Supreme Court, what would that open up moving forward? And, you know, next time the Republicans were to come to power, would they start using those same kinds of tools and strategies?

And is democracy working right? This is a real challenging moment for American democracy right now. Hmm. So much can happen to shape the future of the United States in just the next few weeks. What are you going to be watching for? I'm really curious about turnout because I'm not sure if you saw, but voting has already started, in-person voting in Virginia. They had what were reportedly three-hour lines on the first day. And that was before this issue of the Supreme Court was even part of the ballot consideration in terms of an immediate issue. And I'm also curious to keep watching the money as indicator

of voting motivations here, because the donations that flooded Democratic sites in the minutes and hours after Ruth Bader Ginsburg's death were record-breaking. There's one site, ActBlue, that by noon Saturday had topped $45 million in additional donations. And as always, always, always, we have to watch how this is playing out in the key battleground states that matter. Keep your eye on Florida. Keep your eye on Pennsylvania, Michigan, Wisconsin, because what matters is how this issue, if this issue, shifts how people are considering voting in those places. Lindsay, it's great to get your insight into this. Thank you for speaking with me. You're welcome.

On Sunday afternoon, after I spoke with Lindsay, former Vice President and Democratic presidential nominee Joe Biden spoke about the fight over Ruth Bader Ginsburg's Supreme Court vacancy. If I win, I'll make my choice for the Supreme Court not based on a partisan election campaign, but on what prior presidents have done, Republicans and Democrats, and I've served with many of them.

As everyone knows, I made it clear that my first choice for the Supreme Court will make history as the first African-American woman justice. But I'll consult with senators in both parties about that. All right, that's it for today. I'm Josh Bloch.

Thanks for listening to FrontBurner. For more CBC Podcasts, go to cbc.ca slash podcasts.