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What’s next for the Supreme Court? UT law professor weighs in.

With both a presidential seat and control of the Senate potentially on the line, the balance of power going into 2021 will dictate how this judicial appointment shakes out.
Published: Sep. 19, 2020 at 9:45 PM EDT
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TOLEDO, Ohio (WTVG) - Supreme Court Associate Justice Ruth Bader Ginsburg died on Friday at the age of 87. After 27 years on the highest bench in the United States, Ginsburg left behind a storied history and record with the court system, fighting for the rights of women in the home and in the workplace her entire career. Now, her death, as with her life, is marked by a battle, this time over who will fill her seat.

“The balance of the Supreme Court as a whole is held with this vacancy," explains Benjamin Barros, University of Toledo Dean and Professor of Law for the school. "It would have a tremendous impact regardless of which way it goes on almost any major issue that is in front of the Supreme Court.”

Less than an hour after the Supreme Court announced Ginsburg’s death, Senate Majority Leader Mitch McConnell made a statement confirming that he intends to bring President Trump’s nominee to a Senate vote, despite the fact that it is an election year. McConnell had previously refused to vote on a nominee brought by President Barack Obama during his final year in office, saying that the voters choosing the next president should have a say in that appointment.

“We’re really close to an election and that makes it incredibly complicated,” says Barros, who believes the death of Ginsburg creates a never before seen moment in history. With both a presidential seat and control of the Senate potentially on the line, the balance of power going into 2021 will dictate how this judicial appointment shakes out, and how much of a fight the American people are in for. If President Trump is able to nominate and confirm a third Supreme Court appointment, conservatives would have a 6-3 majority on the court, which progressives are worried would mean a reversal of landmark rulings like Roe v. Wade, which gave women the right to access abortion services in the US, or a rollback of Obama-era legislation like the Affordable Care Act.

Kelli Midgley, center, an English teacher from Baltimore,  joins people gathered at the Supreme Court to honor the late Justice Ruth Bader Ginsburg, in Washington, Saturday, Sept. 19, 2020.
Kelli Midgley, center, an English teacher from Baltimore, joins people gathered at the Supreme Court to honor the late Justice Ruth Bader Ginsburg, in Washington, Saturday, Sept. 19, 2020.(Source: AP Photo/J. Scott Applewhite)

Barros sees 4 possible outcomes moving forward. The first, President Trump is reelected and Republicans keep majority control in the Senate. With both the power of the White House and the Senate Barros believes Republicans would have full control to appoint and confirm a replacement judge hand-selected by Donald Trump.

“Here you have the great liberal hero Justice Ginsberg, if you replace her with a Republican nominee, that’s going to alter the balance," said Barros.

Barros believes the second option would occur if President Trump is reelected this fall, but Democrats gain control of the senate. In this situation, Barros explains Republicans will more than likely rush to appoint a new judge while still in power.

“I don’t think it would be that hard for them politically to move forward in confirming the nominee of a president that’s been reelected,” said Barros.

If Joe Biden wins the 2020 election and the Republicans have Senate majority, Dean Barros hypothesizes that a conservative nominee is still probable to be appointed to the court. However, Barros does believe if Biden and the Democrats all win this fall, a Court Justice with similar beliefs and opinions to that of Ginsburg is likely to take on her mantle.

“If Justice Ginsburg’s seat gets filled by the Democrats it’s not going to change the current ideological balance, it would be more the status quo," said Barros.

As the election inches closer, Barros believes this moment has not only shifted the 2020 race to the White House but the entire future of politics.

“This brings the supreme court right into the forefront, it’s what everyone is going to be talking about," said Barros. “Two days we were talking about COVID and we were talking about the economy, we were talking about many various things, but now the Supreme Court which is always an issue is front and center.”

Dean Barros would not share the scenario that he thinks is most likely to happen but says whoever does replace Ruth Bader Ginsburg will have big shoes to fill.

“Ruth Bader Ginsburg was an absolutely pioneering lawyer and Justice, even before she went to the court and became a Judge and Justice of the Supreme Court,” said Barros. “She was really the intellectual leader of the women’s rights movement, a tremendously influential judge, and also one who was incredibly brilliant. Everybody across the political spectrum would recognize her brilliance.”

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