Trump Could Refuse to Fill Supreme Court Seat Until After Election

If Trump wants to win in November, it’s the ultimate power move.

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President Donald J. Trump speaks with reporters outside the South Portico entrance of the White House Saturday, Sept. 19, 2020, before boarding Marine One to begin his trip to Fayetteville, N.C. (Official White House Photo by Tia Dufour)

With the sad recent passing of progressive luminary and Supreme Court Justice Ruth Bader Ginsburg, the Democratic Party is united in collective horror. That the administration of U.S. President Donald J. Trump might fill another Supreme Court vacancy, and just before the election, has liberals feeling quite faint.

The Democratic Party should hope he does. The alternative, as far as positively impacting Donald Trump’s reelection chances, might be even more unthinkable.

If Trump wants to fill a Supreme Court vacancy and please elected Republicans and conservative voters, he will move to fill the plum spot as soon as possible. Elected Republicans and conservative voters are certainly clamoring for it.

Not only is the Supreme Court seat now vacant, unlike Trump’s last appointment, this is a seat formerly held by a stalwartly liberal justice. The opportunity to flip a liberal seat on the Supreme Court while Republicans control the executive branch and the Senate may prove impossible to resist. As far as Trump’s base in concerned, filling a vacant seat on the Supreme Court is a no-brainer.

However, if Trump really wants to be reelected- if he wants to win over undecided and independent likely voters, and even some persuadable Democrats- he will kick that Supreme Court vacancy can down the road without delay.

President Donald Trump should call a press conference and make the announcement within the next few days. Though, first, if he were thinking entirely about his reelection chances, he should probably let liberals in the press stew loudly about it for a bit. The unhinged online rants of progressive personalities not only help normalize some of Donald Trump’s more ill-advised behavior on Twitter, it causes independent and undecided voters to recoil from the left in disgust.

Independent and undecided voters have lost their taste for violent political uprisings over the last few months. Likely voters who have been in proximity to protests which have devolved into violence are already more likely to vote for Donald Trump.

It will not escape their notice that the left is trending towards inciting violence more and more frequently. Inciting further violence over a Supreme Court nomination will not play well with a majority of the electorate. Supreme Court confirmations happen quite frequently, with plenty of historical and constitutional precedent, not to mention an army of constitutional law experts and lawyers from both parties scrutinizing the process at every turn. There have been protests over the years, smear campaigns, strenuous objections to candidates, some of which have been quite bitter. But they have stopped short of violence.

Incitements to violence, and wild hyperbole that Donald Trump is destroying American institutions, has been somewhat undermined by the recent determinations of the Supreme Court.

There has been some air let out of the left’s expanding claims that conservatives on the Supreme Court spell doom for progressive causes dear to liberal hearts. “In a Term Full of Major Cases,” wrote the New York Times in July 2020, “the Supreme Court Tacked to the Center.

Conservatives on the Supreme Court- including Chief Justice John Roberts and recent-appointee Brett Kavanaugh- have dealt major defeats to conservative causes in the past two years. The court has also rendered verdicts which have furthered liberal causes, rather than dealt them the catastrophic blows progressives have been warning about since Donald Trump took office.

That these direst of predictions have not materialized- that in fact the opposite has been true- will not have increased the likelihood independents, undecideds, and even moderate Democrats will be willing to condone such incitements to violent opposition. Not for a Supreme Court Justice pick.

Once the left’s initial rage has dwindled, however, Trump should call a press conference: “A fight for the open seat on the Supreme Court will be a bitter partisan battle at a time when this country least needs another bitter partisan battle,” Trump should say to a stunned press corp.

“The American people will have a chance to make their voices heard on this matter in just a few short weeks. Thank you.”

Refusing to fill the seat would project the ultimate sense of confidence. It would signal Trump’s certain belief he will be around to see a new justice sworn in whether it happens before November or after.

It would also fly in the face of his critics in the press and in the Democratic Party who are constantly reassuring everyone that Trump is a power-mad, fascist, dictator. Instead, the move would make Democrats look power-mad for contemplating such extreme methods to prevent a constitutionally-sound Supreme Court appointment.

Leaving the permanent appointment until after the election could be easily accomplished by making a recess appointment. A recess appointment wouldn’t be made permanent until 2021, when the post-election Senate- whatever that looks like- would vote on it.

Refusing to fill the vacancy until after the election would be a gamble, certainly. And doing so would have its drawbacks, not least of all with Trump’s base. But if anyone could win them over to the idea, it’s Trump. It is possible that, like President Barack Obama’s failed nominee in 2016, Trump’s nominee won’t get the votes to confirm anyway.

If Democrats in the House and Senate even let the process get that far- which they probably won’t. Trump has his detractors in the Republican Party, and some of them are in the Senate. Sens. Mitt Romney and Susan Collins are two. There are others. Republicans facing tough reelection fights in swing states might balk and refuse to vote with Republicans to confirm Trump’s appointee.

On the other hand, Trump could sail above it all, projecting nothing but confidence in his reelection chances. By giving back this bit of unexpected power to the American people, Trump could prove to undecided voters that Republicans can indeed be trusted with all three branches of government and Democrats cannot.

Ruth Bader Ginsburg’s last wish wasn’t just to have anyone but Donald Trump fill her seat; Ginsburg really wanted, counted on, President Hillary Clinton filling her seat with former President Barack Obama.

That dream, alas, is gone- as are many others which hinged on the hope of a Hillary Clinton electoral victory in 2016. If Democrats want to still salvage the dream that is Election Day 2020, it might be a good idea to tone down the rhetoric a bit.

By raising the stakes so much, and the specter of more violence if Democratic hopes are thwarted, the Democratic Party is playing right into Donald Trump’s hands. He may just decide to take the golden opportunity with which Democrats are presenting him.

(contributing writer, Brooke Bell)

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