The Daily - Part 2: The Battle Over Her Seat

Episode Date: September 21, 2020

In the second episode of a two-part special, we consider the ramifications of Justice Ginsburg’s death and the struggle over how, and when, to replace her on the bench.The stakes are high: If President Trump is able to name another member of the Supreme Court, he would be the first president since Ronald Reagan to appoint three justices, tipping the institution in a much more conservative direction.Guest: Julie Hirschfeld Davis, a congressional editor for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily Background reading: President Trump’s determination to confirm a replacement before the election set lawmakers in Congress on a collision course.

Ruth Bader Ginsburg has passed away. And tell me what you know. We literally are just getting this right now, the Supreme Court justice. That's tough to absorb, obviously. I'm just hearing it right with you. From The New York Times, I'm Michael Barbaro. Now a time for mourning for a remarkable career and life well lived, but also a loss rocking the political universe tonight.

and life well lived, but also a loss rocking the political universe tonight. In part two of our episode on the death of Justice Ruth Bader Ginsburg. We are 45 days from a historic presidential election. We move forward to what happens next. My colleague, Julie Davis, on the fight to fill her seat. The battle lines over the court's future already being drawn. It's Monday, September 21st. Julie, we just spoke to our former colleague, Linda Greenhouse, about the legacy of Ruth Bader Ginsburg. And we want to turn to you as someone who has covered both the White House and Congress to understand this battle about filling Justice Ginsburg's now vacant seat. And it feels like to a pretty remarkable degree that the process of

mourning the loss of Ginsburg and replacing her blended very quickly. That's right. It was immediate. And that is because the stakes are so incredibly high. President Trump has already been able to install two justices on the Supreme Court, both conservatives. This would be a chance for him to nominate yet another conservative. He'd be the first president since Ronald Reagan to have been able to confirm three justices, and it would undoubtedly tip the court in a much more conservative direction. Also, Ruth Bader Ginsburg is a liberal icon. She is revered on the left,

and it's very clear that she would be replaced by someone who might very well vote to undo a lot of the decisions that she was pivotal in making. And on top of that, we're just 45 days out from a really intense presidential election and in the middle of a pandemic. It's a lot. It is a lot.

So let's talk about the various players in this already pretty ferocious battle over replacing Justice Ginsburg. And it feels like the first player, perhaps the most important at the start of this, is President Trump, who has the job of naming her replacement. So how are you thinking about him in this moment and with this vacancy in mind? Right. So you have to remember what President Trump's political situation was before this happened. He has been behind in the national polls, trailing Joe Biden for months. He's been behind in the battleground states that are going to decide this election. his campaign. And so for the president, he and his advisors see this as a way to rally the base yet again and to make this election a referendum on something other than his leadership, something

other than the bad economy and the coronavirus. So Article 2 of our Constitution says the president shall nominate justices of the Supreme Court. And so that's why you're hearing him at his political rallies. I don't think it can be any more clear, can it? I don't think so. Tell voters I'm going to appoint someone. I'm going to appoint them quickly. It's going to be a woman. And so, you know, you heard his supporters chanting, fill that seat, fill that seat. And that becomes a really compelling thing for him

to have something concrete tell people they are going to get. Well, I hope they hear. So the chant, this is a new one. Fill that seat. This is the chant. And what do we know about who the president is thinking of putting in Justice Ginsburg's seat? He said it's a woman.

But beyond that, what do we know? So we know he's looking at at least two women who are judges who he has nominated and gotten through the Senate and confirmed and installed onto the federal bench. The first one is Amy Coney Barrett. She's 48 years old, and she sits on the Seventh Circuit Court of Appeals. She is a former law professor from Notre Dame. She was an academic for much of her career, but she is really a rock star to conservatives. She's a devout Catholic. She has talked in very, you know, stark terms about her beliefs. She's talked about how she sees the law as a means to an end of establishing the kingdom of God. She said during her confirmation

for the appeals court that she would respect precedent, but she is very, very anti-abortion. And most Democrats think that she would be very likely to side with a conservative majority to overturn Roe v. Wade. There's another woman who the president is looking at named Barbara Lagoa. She is on the 11th Circuit Court of Appeals, and she has a lot of things going for her in the eyes of the president and his advisors. She's not only a woman, but she is Cuban-American. She is from Florida, you know, Hispanics around the country, but she is Cuban-American. She is from Florida. Hispanics around the country, but particularly in the battleground state of Florida, are a very important constituency for President Trump. And Judge Lagoa is probably best known for siding with the majority

in a case that was decided just recently in Florida, that said that felons who had been given the right to vote in the election shouldn't be able to vote unless they went back and paid fees and court fines and restitution. So essentially disqualifying a large group of former convicts from voting in the election. a large group of former convicts from voting in the election. And so given her conservative judicial credentials and her personal background, she's another one whose name we're hearing a lot as a possible pick. So the next big player in all this, of course, is the Senate, which would receive President Trump's nominee for this vacant seat. So what are the dynamics there at this moment that we need to understand? Well, the first thing you need to understand is that within a very short period of time after the news of Justice Ginsburg passing came out, Mitch McConnell, the Senate

majority leader, who has dedicated a large portion of his time and energy to packing the courts with President Trump's conservative judicial nominees, both Supreme Court and lower courts, put out this statement, making it very clear that regardless of what had happened in the past, President Trump's nominee was going to get a vote on the floor of the Senate. was going to get a vote on the floor of the Senate. And that kicked up an immediate ruckus because Democrats remember all too well what happened in 2016 when President Obama nominated a judge to succeed Antonin Scalia after he died. It is the president's constitutional right to nominate a Supreme Court justice.

And Mitch McConnell made it very clear right off the bat. Scalia after he died. It is the president's constitutional right to nominate a Supreme Court justice. And Mitch McConnell made it very clear right off the bat. And it is the Senate's constitutional right to act as a check on a president and withhold its consent. That that person was not going to be considered by the Senate because he said there was a presidential election coming up. The American people may well elect a president who decides to nominate Judge Garland for Senate consideration.

The next president may also nominate somebody very different. And the choice of a new Supreme Court justice should be up to whoever was elected on Election Day. Either way, our view is this. Give the people a voice in filling this vacancy. But no one who's watched Senator McConnell and the lengths that he's gone to to confirm conservatives to the federal courts really believed that he would hear his words from 2016 and say,

oh, never mind, I'm not going to go through with this. It was very clear that he was going to go forward with a Supreme Court nomination, even in an election year, regardless of what he'd said in the past. But Julie, I want to linger on that for just a moment, because it did very much feel like Majority Leader McConnell created a standard in 2016. It was an incredibly polarizing standard, but it was a standard nonetheless that in an election year, you should not put forth a Supreme Court justice because it's too close to the election. Voters are about to render a verdict. sudden, and if my math is right on this, much closer to an election than when Merrick Garland was nominated in 2016, McConnell is reversing himself and saying, actually, it's the perfect

time to put forward and confirm a justice. Is he trying to account for that very significant contradiction? Well, he has tried to account for it. He's basically saying that he's being consistent because in 2016, you had a Republican Senate and a Democratic president. So you had divided government. And in that scenario, it was only fair to wait until the voters had their say as to whether they wanted to continue divided government or have a Republican president and a Republican Senate before they acted on a Supreme Court nomination. And now we have unified rule. We have a Republican president and a Republican Senate.

And so that's not necessary. We don't have to wait for that verdict. We have that verdict. They reelected Republicans to be in control of the Senate. President Trump won election in 2016 and we're good to go. So in a way, he's making a pretty raw power argument here that we've got the majority, we've got the say. And so it's kind of a, you know, try to dare to stop us. And the big question then becomes, can he hold Republicans together

around that position? And why would he not be able to hold Republicans around that position? Well, for a few reasons. One of them is that many Republicans had signed on to this position in 2016 and made comments reiterating it in the years since. and one of them was Senator Lindsey Graham. I want you to use my words against me. Who had said repeatedly in 2016. 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. And then again in 2018. If an opening comes in the last year of President Trump's term and the primary process is started, we'll wait to the next election. And I've got a pretty good chance of being the judiciary. You're on the record. Yeah. All right. Hold the tape. You know, I actually invited people to fact check him later if he changed his position. And so the question was, what was Lindsey Graham going to do? And Senator, do you think President Trump agrees that if there is a Supreme Court vacancy in 19 or 20, that it shouldn't be filled because people should wait for the next president to be elected? Chuck Grassley from Iowa, the former chairman of the Judiciary Committee, said something

similar. It'd be the one year of the 20 if you want to follow the pattern of the Biden rule. And I'd followed that. Then you also have two moderate Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, who have said very recently, days or weeks before Justice Ginsburg passed away, that it would not be appropriate to consider a Supreme Court nomination this close to an election. So the question for all of them becomes, are they going to hold to these statements now that the vacancy is a reality? Are they going to turn against them, do a complete 180 and follow Senator McConnell's lead? And what is that going to mean for whether McConnell has the votes to actually do what he's now promised the president he's going to do, which is confirm his nominee. Right. And you just mentioned four Republican senators.

And right now, Republicans control the Senate by just three votes. So if all four of those senators were to basically stay with their public pledge of support for the original McConnell standard, it would not be technically possible to confirm a replacement for Ruth Bader Ginsburg. That's right. McConnell can afford to lose three Republicans with Vice President Pence breaking a tie in the Senate because he's the president of the Senate and still have a simple majority. But if he loses four, that's it, and he can't proceed. So this is the key question for these senators and for the rest of the Republican

senators. Lindsey Graham made very clear very quickly, he is in a tough reelection race in South Carolina, much tougher than expected, and he's obviously been a very loyal ally of President Trump. And very quickly, he just said, never mind what I said before, I now believe we should go forward with this. And he completely turned away from his previous stance. We've heard nothing from Chuck Grassley. He said nothing about it. And then Senator Collins, who is also in a very tough reelection race in Maine, in a state where the president is quite unpopular, actually made it very clear that she was going to stick with her previous position and say, it's an election year.

We are too close to an election. She said the president has the right to nominate someone and we can start to consider that person. But the bottom line is that the person who is elected president on November 3rd should be the person to nominate the successor for Justice Ginsburg. And what about Murkowski? Lisa Murkowski also came out with the same position. She issued a statement that essentially said we should not have a confirmation vote until after the election. But we've really only heard from a handful of senators on this. And part of the reason why is because Senator McConnell knows this dynamic is going to determine whether he has the votes or not. going to determine whether he has the votes or not. And he put out a letter to all Republican senators on Friday night, not long after his public statement went out, that said,

keep your powder dry. Do not lock yourself into any particular position on how to proceed with this vacancy. So what do we think that the Senate will do? Because as much as the president can control this process by putting forward a nominee, at the end of the day, as we learned from the case of Merrick Garland, the Senate either begins to hold confirmation hearings or it does not. So, Julie, what's your sense of what the Senate is likely to do over the next few weeks before the election, and perhaps even after the election, when it comes to filling this vacant seat? Well, I think it's in a way too early to say. Mitch McConnell has to get clear in his own mind where his Republican senators are willing to go with this. And it's not just a question of do we have the votes today,

but could moving very quickly and trying to force a vote and force a confirmation before the election actually damage Republicans politically? to be a very polarizing vote in what we can already tell is going to be an extremely brutal process before they face the voters on November 3rd. So he has a really tricky calculation to make. And it's not just about when he can get 51 votes. And there's another consideration here too, which is the legitimacy question. The Republicans you mean? The Republicans have to consider what happens if President Trump loses and what happens if they lose their Senate majority. In that case, President Trump would still be president after November 3rd

until Joe Biden were sworn in. And Republicans would continue to hold the majority in the Senate and Mitch McConnell would continue to be the majority leader until the new Congress was seated in January, but they would be lame ducks. And the question is, how can a party that has just been rejected by the voters, potentially a president who's just been rejected by the voters, say that even though that's just happened, on their way out the door, they're going to install

a Supreme Court justice who is very likely to reshape the court and its decisions on huge issues in the country for a generation. And there's nothing anyone can do about it. Like, can you really do that? It's just an eventuality that Senator McConnell has to consider. There's no indication that he would not be willing to do it. I think there's every indication that he would be willing to do it. But then you have to also consider, would he be able to get the votes at that point? Are there Republicans who would swallow the process

and go along with it if it happened under a Republican majority with a Republican president, but who would balk at it if it were a matter of confirming a nominee of a president who had been defeated? And that's just not a question that we know the answer to. But the fact is that under the rules of the Senate, under the Constitution, the way this process works, that is very possible and it is permissible. And the way the votes break down, there might not be anything that Democrats could do to stop it. We'll be right back. So Julie, we've now talked about the president and the Senate and their plans for filling the vacancy of Justice Ruth Bader Ginsburg. Where does the president's Democratic rival Joe

Biden fit into all of this? And how is he seeking to influence this process over which Democrats don't seem to have a ton of influence at the moment? And how do we expect this process, over which Democrats don't seem to have a ton of influence at the moment? And how do we expect this process might influence his candidacy? Well, for the moment, Joe Biden is trying to do two things. Look, I'm not being naive. I'm not speaking to President Trump. We'll do whatever he wants. One of them, in terms of influencing the process. I'm not speaking to Mitch McConnell. will do what he wants and he does. He's trying to talk to moderate Senate Republicans

or institutionalists in the Senate. His former colleagues. His former colleagues and say, listen. I'm speaking to those Republicans out there, Senate Republicans, who know deep down what is right for the country and consistent with the Constitution, not just what's best for the party.

This shouldn't go on. Let's halt this process right now. The next president should get to choose the nominee. And you Republicans, you should do what's right. And basically to try to get them to break with Senator McConnell's position and actually try to put the brakes on this process. But at the moment, it looks pretty unlikely that he is going to win over enough converts for that to actually affect the way that this proceeds. And so... I'm speaking for millions of Americans out there.

We're voting because they know their health care hangs in the balance. In the middle of the worst global health crisis in living memory. Biden is making this much broader thematic argument for his own candidacy and really centering it around health care and the future of health care. Donald Trump is before the Supreme Court trying to strip health care coverage away from tens of millions of families. care coverage away from tens of millions of families.

They strip away the peace of mind of more than 100 million Americans with pre-existing conditions. And he's doing that because there is a big case that's coming before the Supreme Court for oral arguments the week after the election in which the Trump administration is trying to invalidate key portions of the Affordable Care Act. And perhaps most cruelly of all, if Donald Trump has his way, the complications from COVID-19, which are well beyond what they should be, like lung scarring and heart damage, like lung scarring and heart damage, could become the next deniable pre-existing condition for over 6 million Americans

who've already contracted the disease. And what Biden is doing is he's essentially telling voters, you re-elect President Trump, you allow this conservative nominee to replace Ruth Bader Ginsburg, the liberal icon on the court, you can kiss your health care goodbye. That is a person who is going to vote to strike down the Affordable Care Act. That is a president who is going to eviscerate what has been an important way for tens of millions of Americans to get coverage.

And by the way, we're in a pandemic. Right. And that can't be allowed to happen. And so what he's really doing is he's making a broader electoral argument for this is why you need to reject President Trump and elect Joe Biden. It's about health care. And Nancy Pelosi, the Speaker of the House, and all the other leading Democrats have really taken up this argument. The president is rushing to make some kind of a decision because he,

November 10th is when the oral arguments begin on the Affordable Care Act. Which, of course, they used in 2018 to very successful effect to really tell people, this whole election is about your health care and whether you're going to be covered or not. And Democrats will do that for you and Republicans will not. He doesn't want to crush the virus. He wants to crush the Affordable Care Act. So what they're doing is, in a lot of ways, the other side of the coin to what President Trump is doing. They're really seizing on this court fight as the animating force of this election.

So, Julie, that very naturally brings us to the final player in all this, which is, of course, the voters. And in the past, we've often talked about how animating Supreme Court battles are to the right. And I'm curious how motivating it is in this moment to the right, but also to the left. I know it's only been 48 hours, but what are we seeing? Yeah, so the early indications are that there is a huge amount of intensity and grief for Justice Ginsburg's passing and also anger at how this is being handled on the left.

I think in the past couple of days, ActBlue, the Democratic donor site, has raised more than $90 million. Wow. You have a lot of judicial groups on the left pledging millions, as much as $10 million or more, to pour into the presidential race, into key states in which the Senate is in play, to really drive home this message about the importance of this issue. And the other thing we've seen is...

a lot of mourning. I live not far from the Supreme Court, and there's just been this constant vigil of people passing by and leaving flowers and... of people passing by and leaving flowers and saying Kaddish for Ruth Bader Ginsburg and people driving from all over the country to go pay their respects. So while, yes, you do have a lot of intensity on this issue on the right,

and that's always been the case. That's been the case for many decades. I think the new thing here is that we are also seeing this kind of grief-stricken Democratic left that is much more engaged in this issue than we've ever seen them. And that is kind of an X factor that I think is going to have a major impact on this process. of an X factor that I think is going to have a major impact on this process. You know, Julie, I'm mindful that at the end of the day, it is a president's prerogative to fill an open seat on the Supreme Court. I mean, dating back to the beginning of the Supreme Court, you're not president for three years and two days or three years and seven months.

And so the idea is if you're president and there's a vacancy on the Supreme Court, it's your role to fill it. But that what Majority Leader McConnell did fundamentally changed that basic dynamic because he deprived a president of the ability to even meaningfully put forward a Supreme Court justice. And that everything we're now experiencing has been deeply informed by that. And it helps explain why this process is now so brutal and ferocious. Right. I mean, if you think back on the history of Supreme Court fights in the Senate,

there is so much scar tissue there. I mean, you think back to Clarence Thomas and how nasty that got. Even more recently, the really bruising confirmation battle over Brett Kavanaugh. And those were deeply, deeply divisive phases in the history of Supreme Court confirmations. But at least they were a process.

At least the Senate was considering the elected president's nominee. And the fact that that did not happen in 2016, that Senator McConnell decided that he was not going to even so much as allow a hearing on President Obama's Supreme Court nomination, really just put this sort of poisonous point on what had already become a really highly politicized and often very nasty process. And so now that we are in, you know, the tail end of a very intense presidential election with a very closely divided Senate, and we have this vacancy of a liberal justice that is, you know, about to be filled,

if they take the president at his word, by a conservative replacement, it's no surprise that this is all really just coming to a head. And that's really why when you talk to senators honestly about this confirmation process, they will tell you that it is a deeply flawed and broken process, and that it has really reached a low point. And I think we're about to see just how broken it is. Julie, thank you very much.

Thank you, Michael. On Monday morning, President Trump said he would announce his choice to replace Justice Ginsburg as early as Friday, after her funeral, and is seeking to have the Senate confirm that nominee before Election Day, if possible. Joe Biden, anticipating that the confirmation process may extend past the election, said on Sunday that if he wins, Trump should withdraw his nominee and let Biden pick his own justice after the inauguration. We'll be right back. Here's what else you need to know today. On Sunday night, the United States was on the verge of 200,000 deaths from the coronavirus,

a once unimaginable number that has come just six months into the pandemic. So far, the virus has infected nearly 7 million Americans and is on course to claim the lives of at least one million people worldwide. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.