News analysis

Death of Ruth Bader Ginsburg, a liberal warrior of law, raises stakes in US election

Ginsburg's vacancy set to shift balance in apex court as Trump urges speedy replacement

The death of a warrior of the law - the seemingly indomitable United States Supreme Court Justice Ruth Bader Ginsburg - on Friday at 87, after a long battle with cancer, has brought the core agenda of American conservatives within tantalising reach, raising the stakes in the upcoming election.

The sudden vacancy she left is set to shift the balance of the nine-seat bench of the Supreme Court to the conservatives for decades to come.

US Supreme Court justices are appointed for life or until they retire.

President Donald Trump has an opportunity now, with a Republican-majority Senate, to ram through an appointment while still in office, or risk losing power and leaving the appointment to the Democrats.

Yesterday, in a Tweet addressed to the Republican Party, he said: "We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court justices. We have this obligation, without delay!"

Appointing a new justice now opens the door to reversing gains of liberals and progressives, in terms of women's rights, LGBTQ (lesbian, gay, bisexual, transgender and queer) rights, gun control, and even as far back as the landmark 1973 Roe v Wade judgment which decriminalised abortion - which has been in the sights of conservatives ever since.

A 2016 Pew Research Centre poll found that 65 per cent of voters cited appointments to the Supreme Court as an important factor in their voting decision. Now the struggle over filling Justice Ginsburg's position adds yet another dimension to the bitterness of America's political divide, less than 50 days to the Nov 3 election.

Reportedly just days before her death, Justice Ginsburg dictated a statement to her granddaughter Clara Spera, saying: "My most fervent wish is that I will not be replaced until a new president is installed."

But even as hundreds gathered spontaneously at the Supreme Court late on Friday night in Washington, Senate Majority Leader Mitch McConnell was signalling a rush to replace Justice Ginsburg, asserting: "President Trump's nominee will receive a vote on the floor of the United States Senate."

It was in stark contrast to his own statement in February 2016 when, also faced with a vacant seat on the Supreme Court bench following the death of Justice Antonin Scalia, a leading conservative voice, Mr McConnell had said then: "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president."

Republicans successfully stalled the filling of the position, which deeply rankled Democrats. Then President Barack Obama's Supreme Court nominee, Mr Merrick Garland, did not even get a hearing from the Republican-controlled Senate. In the end, President Trump made two appointments - both of them conservatives - to the Supreme Court. The first was Justice Neil Gorsuch in early 2017; the second, Justice Brett Kavanaugh in 2018 - who replaced retired Justice Anthony Kennedy.


The Supreme Court bench is, thus, already somewhat ideologically conservative; another conservative appointment will decisively tilt it. Making a third appointment would be an enduring legacy for President Trump.

The gap between the two parties over the Supreme Court has meanwhile widened.

In August last year, Pew Research found that three quarters of Republicans and Republican-leaning independents had a favourable opinion of the Supreme Court, compared with only about half (49 per cent) of Democrats and Democratic leaners.

While it would be unusually fast to complete the entire confirmation process in less than 50 days, it is possible.

An additional spectre looms - of a Supreme Court tasked to rule on a disputed election result.

People paying tribute to United States Supreme Court Justice Ruth Bader Ginsburg at the Supreme Court in Washington on Friday. PHOTO: REUTERS


In that regard, the composition of the bench is even more critical in the short term, for President Trump who has explicitly questioned the integrity and credibility of the electoral process - seemingly to prepare the ground to dispute the result should he lose.

"Ginsburg's death creates new dynamics if there is an election-related dispute before the court," said FiveThirtyEight, a political analysis website, in a commentary. "One of the most divisive elections in American history will now likely be even more tense and fraught," it added.


Our nation mourns the loss of a titan of the law… renowned for her brilliant mind and her powerful dissents at the Supreme Court. 



She was a magnificent judge and a wonderful person – a brilliant lawyer with a caring heart, common sense, fierce devotion to fairness and equality, and boundless courage in the face of her own adversity. 

FORMER U.S. PRESIDENT BILL CLINTON, who appointed Justice Ginsburg in 1993. 


Her opinions, and her dissents, will continue to shape the basis of our law for future generations.  



She rose from a working class upbringing and prevailed over all odds to become one of America’s best-known jurists... I have two daughters, both of whom know about Justice Ginsburg’s story... It is a struggle they will confront in the years ahead, and they will look to people like Justice Ginsburg for inspiration. 


A version of this article appeared in the print edition of The Sunday Times on September 20, 2020, with the headline 'Death of liberal warrior of law raises stakes in US election'. Print Edition | Subscribe