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OP-ED: The American election and the death of Justice Ginsburg

  • Published at 08:17 pm September 26th, 2020

This is the first part of a three-part opinion piece 

On September 18, 2020, Associate Justice Ruth Bader Ginsburg died after serving on the Unites States Supreme Court from 1993. While she wrote many important opinions, the quickest summary of her work focused on establishing equal treatment of women and men. Federal judges in the United States serve for life as established in the constitution.

The Supreme Court is composed of nine justices, one of whom is nominated by the president as chief justice. Common opinion is that the ideology of the current group of justices is split with five conservatives and four liberals. Chief Justice Roberts sometimes sides with the four liberal justices, but generally is with the conservative group. 

Trump and the Republican party have been quick to begin the process of nominating a replacement for Justice Ginsburg and going through the steps for the new justice’s approval by the senate, as required by the constitution. Trump has said that he wishes to have the new justice confirmed before the election.

I will cover two points: First, in Part 1, the impact if any on the election. Second, in Part 2, why this new appointment may be an important factor in economic and social change in the US.  

Impact on the presidential election 

With one important point covered below, I do not think that the issues around the appointment of a new justice will have any significant impact on the presidential election. This presidential election is very near and people have been talking about this and thinking about it for months.  

Almost everyone will have made up their mind and the Supreme Court issue is not sufficiently important to cause voters to shift their choice.

Both sides have supporters who are very worked up and determined that their choice should win. There is no reason to believe that the appointment of a new justice would cause the Republicans or the Democrats to work harder on the election. Both sides are working as hard as they can.

The Gallup organization just released the results of a poll taken in late August before Justice Ginsburg’s death: This reported that 42% were satisfied with the liberal-conservative balance of the court; 32% thought that it was too conservative and 23% thought that it was too liberal. These results do not suggest that the make-up of the court is a major issue in the voter’s minds.  

National-level voting estimates from opinion polls have been quite stable for the past year despite the pandemic, the recession, and the growing concern about racial discrimination.

Indeed there is an argument as follows: Lots of Republicans do not like Trump but they wanted a president who appointed conservatives to the court. Trump has fulfilled their expectations. If he manages to get a third conservative on the court that would be wonderful; but then we do not need him anymore.  

Impact on the elections for the Senate  

There may be some impact on several of the Senate contests. There are six Senate elections where the incumbent is a Republican. Trump is forcing these senators to vote against what many said they would not do -- select a justice in a year with a presidential election.   These Senate elections are all very close and the Democrats will accuse the Republican candidates of going back on their word, being dishonest and without principle, etc.  

It is impossible to judge the impact but it will be a central issue from now to the election. The issue is not the vote for or against the justice but the dishonourable behaviour of the senators. All of these men and women are so dishonourable anyway it should not have much impact. But if there is going to be any impact on the election it is more likely to come in the Senate elections than anywhere else.  

What happens if the election disputes go to the Supreme Court?

Both sides in this election have mobilized large numbers of lawyers and observers with the prospect of bringing cases related to the voting. It is difficult to know how all of this prospective litigation might develop. One line of dispute is the challenge of mailed ballots. This could be a tremendous tangle that results in an inability of the state to know the results of the election by early January.  

In that case, how would the state decide how the electoral college votes from that state should vote? The legislature of the state could simply say who they should vote for regardless of the vote count.  There is nothing in the constitution that requires the decision on the electoral college to be determined by a vote.  

There are voting laws but in principle the legislature can simply override these. The governors of these states may instruct a different set of electoral votes. There is every prospect for chaos. How would such disputes be resolved? The Supreme Court may accept such disputes or it may leave it to Congress as the constitution outlines.   

From Trump’s viewpoint, having another conservative judge on the court would be additional insurance that if the court did take up the disputes he would get a ruling favourable to his election.  

Obviously these are explosive issues. If the disputes remain in the Congress then the outcome will follow what I wrote in a column some weeks ago titled “End game.”

These are disputes that lead to violence and a breakdown of the US government. Do you believe that the US could not split into several countries? Did you believe the Soviet Union could not break up? I take these violent prospects up in a subsequent column.

No one knows how the court would vote. If Biden wins the popular vote by 7-8% as is likely (national polls are quite accurate) the court would be very reluctant to award the presidency to Trump. Of course they did this in 2000 but then the gap was only 2%.  

In any event, the subsequent recounts in Florida resulted in George Bush getting a majority. In retrospect, Bush’s election was legitimate.  

But the number and complexity of the disputes are far greater as we approach the election. The justices are first of all Americans who want stability and good governance. They are not going to vote as if they belonged to a political party. Chief Justice Roberts will try to guide the court through a resolution or keeping out of the disputes completely.  

These men and women do not want to be part of the destruction of the US with their names going down in history as failures. 

If the legal disputes prevent a proper closure to the election then there are three outcomes possible:

  • The Supreme Court will try to resolve the disputes.
  • The Court will leave it Congress and there will be a vote by the House of Representatives on who is to be president (read my column “End game”).
  • On January 20 with no resolution of the dispute Nancy Pelosi will announce that she is taking over the presidency until the election results are available. As the law prescribes. Such an outcome would drive Trump crazy.

Forrest Cookson is an economist who has served as the first president of AmCham and has been a consultant for the Bangladesh Bureau of Statistics.

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