Could Amy Coney Barrett get Donald Trump re-elected?

While most opinion polls show Democratic presidential candidate Joe Biden leading US President Donald Trump, the gap has narrowed significantly. Hence, a looming political battle over a vacancy on the US Supreme Court could potentially determine the fate of both candidates.

Real Clear Politics, which operates as an aggregator for political data, has Biden ahead with a spread of 6.1 per cent for the period between September 15-28. That’s a decent advantage, but also a significant drop of almost 2 percentage points from September 11. (It’s also lower than Hillary Clinton’s 12-15 point lead on average over Trump around this time in 2016.) Several polls show a tight race, including Rasmussen (Biden +1) and Harvard-Harris (Biden +2), while others show a large gap, including ABC News/Washington Post (Biden +10).

The question, as always, is which trend is the outlier. If it turns out to be the latter, a repeat scenario of the 2016 presidential election may be in the cards.

Yet it’s also important to keep in mind the electoral college, and not the popular vote, determines the next occupant of the White House. The two statistics are usually tied together, but not always. Five presidents — John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), George W. Bush (2000) and Trump (2016) — lost the popular vote but won the all-important electoral college.

What does this mean? A significant event could tip the scales when it comes to critical battleground states such as Florida, Arizona and Minnesota. It could also help motivate Rust Belt states like Michigan, Wisconsin and Pennsylvania, which helped propel Trump to victory four years ago.

Which brings us to Amy Coney Barrett.

She’s a former law professor at Notre Dame who clerked for Circuit Judge Laurence Silberman and the late Supreme Court Justice Antonin Scalia. Her academic work for publications like the Columbia Law Review, Cornell Law Review and Texas Law Review has been well-received and widely praised. She was nominated to the Seventh Circuit Court of Appeals by Trump on May 8, 2017, and confirmed on October 31, 2017 by a margin of 55-43. (This included the votes of three Democratic Senators who supported her nomination.)

Barrett was then nominated to the US Supreme Court by Trump on September 26. If approved by the Senate, she will take over the vacant seat left by Justice Ruth Bader Ginsburg, who passed away on September 18 due to long-standing complications from pancreatic cancer.

American progressives predictably blew their collective top with Trump’s nomination.

Ginsburg, a liberal who believed the US Constitution was a living document and championed gender equality and women’s rights, was the equivalent of a liberal saint. The left didn’t want her to be replaced by a judge with small “c” conservative beliefs, a strong Catholic faith and is an originalist (ie. someone who believes judicial matters and/or decisions involving the Constitution must be interpreted along the lines of what the Founders wrote, said and meant).

Progressives know that Barrett’s confirmation would give conservatives and Republicans a crucial 6-3 judicial advantage on the Supreme Court for at least the next 10-20 years. Decisions on many social issues like abortion, religion, capital punishment, gay marriage and euthanasia would be fairly right-leaning in tone and tenor. That would be good news for most political conservatives, and anathema for most political liberals.

Progressives also wanted Ginsburg’s last request to be honoured, “My most fervent wish is that I will not be replaced until a new president is installed.” Besides the fact this statement has no legal standing or basis, it wasn’t her decision to make. The sole authority lies in the hands of the sitting President and Members of the Senate.

Can Trump and the Republicans get Barrett on the upper bench before November 3? Yes.

There’s a precedent for a speedy nomination process on the Supreme Court. Justice John Paul Stevens was approved 98-0 on December 19, 1975, a mere 19 days after he was nominated by then-President Gerald Ford. While no-one believes Barrett’s nomination would pass unanimously in Washington’s ideologically rigid environment, a vote mostly along party lines — with the exception of two Republican Senators, Susan Collins and Lisa Murkowski — seems likely.

Meanwhile, the Democrats used the “nuclear option” in 2013 with respect to eliminating filibusters and the 60-vote rule on executive branch nominations and federal judicial appointments. Although this precedent didn’t originally apply to the Supreme Court, Republicans extended the “nuclear option” during the hearings for Justice Neil Gorsuch in 2017.

Since the Republicans control the Senate with a 50+1 majority, Democrats can only stall proceedings for a small handful of days. There’s really nothing they can do to block Barrett.

How will this affect the presidential election?

Barrett’s nomination will be a major political issue for the remainder of the campaign. It will be a popular topic of discussion during the three presidential debates, and the limited number of political rallies being held during Covid-19. Trump is hoping that a third conservative judicial nominee on the Supreme Court will solidify his political base and include more right-leaning independents. As for Biden, he’ll be focusing on bringing out more progressives to the ballot box in retaliation for this perceived jackrabbit of a Supreme Court nomination.

The Democrats are also threatening to pack the Supreme Court if they’re able to take control of the Senate and White House. This would add more politically liberal judges to the upper benches, and help defeat a short-lived Republican supermajority.

The problem with this scenario is obvious. Republicans would immediately retaliate when they took back both the Senate and White House, and it could just keep on going and going. If the judicial branch reaches a point where it can no longer effectively create checks and balances on the executive and legislative branches, Washington could become a bigger swamp than anything we’ve ever seen before.

Fascinating times in the US, indeed. And all it took was an unexpected political fight for one open Supreme Court seat that could determine the fate of a great nation for years to come.