“My most fervent wish,” Ruth Bader Ginsburg said days before her death on Friday, “is that I will not be replaced until a new president is installed.”
Ginsburg’s wish could be fulfilled, if the Senate majority leader, Mitch McConnell, falls short in his 11th-hour push to rally Republicans to replace her.
But even before Ginsburg’s death, McConnell, Donald Trump, conservative legal activists and evangelical groups were mobilizing for an all-hands campaign to fulfill their dream of a conservative super-majority on the supreme court that could endure for generations.
That dream sees Roe v Wade, the landmark abortion rights decision, overturned; healthcare laws and environmental regulations tossed out; voting rights rolled back; anti-discrimination protections stripped; protections for immigrants vacated; and crucial bonds restraining the power of the presidency loosed.
A national anti-abortion group, Susan B Anthony List, hailed a historic crossroads in the battle to make abortion illegal.
“This is a turning point for the nation in the fight to protect its most vulnerable, the unborn,” the group’s president, Marjorie Dannenfelser, said. “The pro-life grassroots have full confidence that President Trump, leader McConnell, [judiciary committee] chairman [Lindsey] Graham, and every pro-life senator will move swiftly to fill this vacancy.”
Ginsburg’s death has opened the way for Trump to make a third appointment to the court in just four years. But this one would be special. With his first two picks, Neil Gorsuch and Brett Kavanaugh, Trump filled slots that had been occupied by conservatives.
By replacing Ginsburg, Trump will have the opportunity – and he has left no doubt that he sees it as such – to swap out a liberal lion with a young conservative, building up the current four-vote bedrock conservative minority into an impregnable five-vote majority. The nine-seat court decides cases with strict majority votes.
If Trump can replace Ginsburg, conservatives would not even need the vote of the chief justice. A George W Bush appointee, John Roberts’ rulings with the liberal bloc on healthcare and LGBTQ+ and immigration rights have led activists on the right to view him as unreliable.
Such a fundamental ideological tilt has not happened in 50 years. Progressive groups have raised an alarm about a generational threat to basic rights and protections.
“It would be an insult to [Ginsburg’s] legacy for this president to select a justice he promises will assail our rights and undermine, upend and unravel our democratic norms for generations,” said Vanita Gupta, president of the Leadership Conference on Civil and Human Rights. “Our fundamental rights are at risk.”
Trump has released lists of potential nominees, in an effort to shore up support among evangelicals and so-called “values voters”.
The lists include eight circuit court judges, three senators and two former solicitors general. But court watchers see three names as most likely to get the call: Amy Coney Barrett, 48, a federal appeals court judge in Chicago; Thomas M Hardiman, 55, an appeals court judge in Philadelphia; and William Pryor, 58, an appeals court judge in Atlanta.
With only 45 days left until an election which could usher Trump out of the White House and change the balance of power on Capitol Hill, Trump was expected to name a selection almost immediately. The confirmation process would be extraordinarily short.
Any Trump nominee would have to appear before Graham’s judiciary committee, which would then vote the nomination onto the Senate floor, where a majority would be required to install the judge on the court.
Outraged that McConnell planned hearings so close to the election, in what critics see as a cravenly hypocritical reversal of his refusal in 2016 to consider a Barack Obama nominee advanced in March of an election year, Democrats and activists vowed to stop any rushed confirmation.
With the next presidential election quickly closing in, now is not the time to ram through a supreme court justiceNan Aron
“With the next presidential election quickly closing in, now is not the time to ram through a supreme court justice,” said Nan Aron, president of the Alliance for Justice.
The perceived frontrunners in Trump’s selection process have drawn sharp warnings from progressives about ties and statements on abortion, criminal justice and other topics.
Barrett, a former law professor at the University of Notre Dame, is an outspoken Roman Catholic and a mother of seven.
“The dogma lives loudly within you and that’s a concern, when you come to big issues that large numbers of people have fought for for years in this country,” the Democratic senator Dianne Feinstein told Barrett at confirmation hearings for her appeals court post.
Barrett replied: “If you’re asking whether I take my faith seriously, and I’m a faithful Catholic, I am, although I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”
Pryor, 54, of Alabama, once described Roe v Wade, the 1973 decision making abortion legal, as the “worst abomination in the history of constitutional law” and wrote that it had “led to the slaughter of millions of innocent unborn children”.
Appointed to the circuit court by Bush in 2004, Pryor was previously Alabama attorney general, replacing future Trump attorney general Jeff Sessions.
Hardiman, 51, of Pennsylvania, has advanced conservative rulings in “law and order” cases on issues such as sentencing guidelines, the death penalty and gun rights issues. In one case, he questioned if the first amendment protected people who videotaped police during a traffic stop.
For any nominee to advance, Graham, in a tough re-election fight in South Carolina, must agree to schedule a last-minute hearing. After Obama nominated Merrick Garland in 2016 to fill a seat vacated after the death of Justice Antonin Scalia, Graham said he was against such an election year move on principle.
“I want you to use my words against me,” Graham said in televised remarks. “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.’”