With top court vacancy, stakes for November election go sky high

By The SATimes News Service

By Shivaji Sengupta

Fate has dealt a cruel blow to the liberals and most Democrats with the passing of Justice Ruth Bader Ginsburg last Friday, 47 days before the elections. Those who are in the dark regarding the two momentous events – the death and the elections – let me remind my readers that until now, the nine Supreme Court justices provided a 5-4 advantage to the conservatives. With Justice Ginsburg’s passing, the balance has shifted to 5-3. When Donald Trump’s new nominee is voted in by a Republican majority in the Senate, the balance will overwhelmingly favor the conservatives, by 6-3. What has all this got to do with the elections? Plenty: most immediately, if there are the slightest legal objections to the election results, and the case goes to the Supreme Court, chances are that a 6-3 conservative Court would vote in favor of Donald Trump, and the Democrats would lose.

Another huge casualty of a possibly conservative Supreme Court could be the Affordable Care Act. We all know just how much Donald Trump wants to repeal the Affordable Care Act. He has been trying to do so ever since he became president. Each time, however, either Congress or the Supreme Court frustrated his efforts. However, this time, with a 6-3 conservative majority, they have a solid possibility of gutting ACA, sinking millions of Americans’ medical insurance, especially those of senior citizens who have pre-existing conditions. Now, Donald Trump has repeatedly said, a new healthcare program replacing Affordable Care Act will not replace pre-existing condition. That may be, but the bipartisan Office of Governmental Budget predicts such a steep rise in the cost to keep preexisting condition in any new plan that it would be out of reach for those living on social security. Like the sneaky businessman that he is, he never mentions the cost. So the Republicans are in an awful hurry to eclipse the noble tenure of Justice Ginsberg, replacing her with an arch conservative justice to the Supreme Court, one that will end the Affordable Care Act.

Despite Donald Trump’s directive to Mitch McConnell, the leader of the Republican Senate majority, to confirm his nominee to the Supreme Court in “less than a month,” there are serious doubts as to whether that is indeed possible. There are Republican senators like Susan Collins, Lisa Murkowski, Martha McSally, Cory Gardner and yes, even Lindsay Graham, who may have to think many times over before confirming Trump’s choice. This is because in February 2016, when Justice Antonin Scalia passed away, nine months before a presidential election, the Republicans, from McConnell downwards, refused to even consider Barack Obama’s nomination for Supreme Court until after the elections. Invoking “the rights of the American people, ” they stalled Obama’s right as president to nominate a Supreme Court justice. Now, less than two months away from another presidential election, with Justice Ginsburg’s passing, the same Republicans in the Senate have completely changed their tune. They are in an awful hurry to name the next (conservative) justice to the Supreme Court in place of the liberal Ginsburg.

But what of the voters? Shouldn’t we, who will ultimately determine the fates of the Susan Collinses, the Martha McSallys and of the Lindsay Grahams this November, take into account the blatant hypocrisy of the senators who abstained in February 2016 in our name, and now could vote for a replacement in the Supreme Court also, apparently, in our name? I would venture that the above mentioned senators – and others up for reelection – would be reminded of what they had publicly said back in 2016. The Democrats need four senators to vote against Trump’s nominee. Two have already said they won’t: Susan Collins of Maine, and Lisa Murkowski of Alaska, the latter not coming up for reelection. They need two more.

Thus, Justice Ginsburg’ demise has thrown the country into a massive confusion, the country, caught in the throes of a pandemic, an unstable economy, social unrest and now the crisis of the Supreme Court. We Americans have a grave duty toward our country, to do right by us when we approach the ballot box.

But even if, for arguments sake, the Democrats win, both in the White House and in the Senate (assuming the House will also return a Democrat majority), the Supreme Court will still be dominated by conservatives. In such a scenario, every time a controversial decision is taken by a Democrat dominated legislature, the Republicans can appeal to the nation’s highest court, and win because of its heavy conservative majority.

The question arises why should the justices appointed to the Supreme Court favor one side or another? Aren’t they supposed to be neutral? Isn’t the famous mythical sculptor of Justice, adopted by the Supreme Court blindfolded, symbolizing its even-handedness? Then why should we worry about who is appointed and about their political stripes? Alas, it is because we live in a real world. Here, the blindfold of Justice is not opaque but translucent. Light passes through it, coloring their vision: liberal or conservative. We have to live with this reality. The Democrats’ cardinal sin of the past decade has been their inability to win back the Senate. The Senate and the Supreme Court on the same side makes for a lethal combination. The Republicans enjoy that now.

So, let’s talk about the Democrats’ chance to win back the Senate. The Republicans currently enjoy a majority of six, 53-47. However, in 2020, 23 Republicans have to contest their seats, as opposed to the Democrats defending 12, at least mathematically, favors the Democrats. They will need to win four or five seats, without losing any of their own. According to polls (and they can be wrong, as we have seen in 2016), only one Democratic Senator, Doug Jones of Alabama, is predicted to lose his bid for reelection. This means the Democrats would need to defeat five Republicans in order to wrest back the Senate majority. Currently, according to “FiveThirtyEight,” a  political and statistical analysis blog, the Democrats enjoy a 68% chance of victory.

President Trump wants to nominate a woman to fill the Supreme Court vacancy left by the death of Justice Ginsburg. It will skew the court further right. Amy Coney Barrett, a judge on the Chicago-based U.S. Court of Appeals for the 7th Circuit, is considered a favorite. She is a proven conservative and a devout Catholic.

The presidential polls look even better for them. If the elections were held today, Joe Biden would win comfortably. But even as I write this, I am reminded of the polls predicting an easy victory for Hillary Clinton. Post-analysis of that election unearthed some vital mistakes on the part of Mrs. Clinton’s campaign: ignoring Wisconsin, taking Michigan for granted. She lost both states narrowly.

This year too Biden seems to have taken some things for granted. One of them is the assumption that the electorate will understand the Democrats not going door to door in person because of COVID-19. The Republicans are leaving nothing to chance. They are going, mask and all, knocking on doors, to request votes for their candidates, president downwards.

Democrats should take note. Even in this highly technological age, there is nothing like human touch. Come voting time, whether it’s early voting in person or by mail-in ballots, or on November 3, undecided voters might even subliminally recall the personal touch and vote Republican.

As I write this, there are only 44 days left for the voting to be over. I have said repeatedly that because of the pandemic, healthcare is hugely important, especially for the aged. Over 200,000 Americans have died, over six million are ill. 160,000 of the dead are those above sixty-five. Please remember what is at stake, not only for you personally, but for all Americans. The pandemic knows no Republicans and Democrats. For the same reason, healthcare knows no Republicans or Democrats.

Let us vote for the president, and for the Congress, who would do right for all of us, reeling under this pandemic.

Shivaji Sengupta is Professor Emeritus, a retired VP Academic Affairs at Boricua Collegeand a regular contributor to our op-ed columns.

Images courtesy of (Photos courtesy CBS) and thesatimes | Welcome to The South Asian Times

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