Here’s what you need to know:
- Flags lower to half-staff as the parties brace for the political battle ahead.
- The Supreme Court vacancy has abruptly transformed the presidential campaign.
- McConnell says Trump’s nominee to replace Ginsburg ‘will receive a vote’ in the Senate.
- Biden says ‘voters should pick the president, and the president should pick the justice.’
- Grief and tributes for Ginsburg as mourners gather outside the Supreme Court.
- A few moderate Republicans will play key roles in the court battle.
- Trump updated his list of potential Supreme Court nominees last week. Now it’s of intense interest.
Flags lower to half-staff as the parties brace for the political battle ahead.
Saturday began in a sunny, stunned Washington with the lowering of flags to half-staff over federal buildings in commemoration of the death of Justice Ruth Bader Ginsburg.
It was a traditional gesture that nonetheless underscored the thus-far subdued, grave and careful tone being set by President Trump, who has often flouted the decorous norms of national mourning. Mr. Trump’s team sees a potential battle over courts as an opportunity to jump start a stumbling campaign, but they are urging him to do it in a way that does not alienate voters, especially women, Republican aides said.
Three big questions loom: Who will Mr. Trump pick to replace Justice Ginsburg? Will Republicans like Susan Collins of Maine stop Mr. McConnell from quickly forcing a vote? How will voters respond?
The capital was consumed with worry, maneuvering and mourning. Hundreds gathered outside the Supreme on Friday night (it was, coincidentally, Rosh Hashana, the start of the Jewish New Year) to celebrate the life and legacy of the second woman, and first Jewish woman, to serve on the high court.
At one point a mourner recited the Kaddish, the tuneless prayer of remembrance written in ancient Aramaic. It echoed off the marble facade of the court, just across the street from the illuminated Capitol dome where the fight over Justice Ginsburg’s replacement will soon commence.
Senate Democrats are expected to hold a conference call at 1 p.m. Eastern to discuss the next steps, according to an aide familiar with the plans. Senator Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, said any attempt to fill the vacancy on the court would amount to “the height of hypocrisy,” given that Republicans blocked Merrick Garland’s nomination from advancing more than 200 days before the election in 2016.
“It has been reported that Justice Ginsburg’s wish was that the winner of the upcoming election nominate her successor,” Ms. Feinstein said in a statement. “We should all honor that wish and wait until after the presidential inauguration to take action.”
Senator Mitch McConnell of Kentucky, the majority leader, vowed Friday night to hold a vote on Mr. Trump’s replacement for Justice Ginsburg, and in a letter to his conference he urged Republicans to “keep their powder dry” after Alaska Republican Lisa Murkowski announced she was opposed to addressing the matter after the election.
“This is not the time to prematurely lock yourselves into a position you may later regret,” Mr. McConnell wrote in the letter, first reported by The Washington Post and confirmed by The New York Times.
The Supreme Court vacancy has abruptly transformed the presidential campaign.
The death of Justice Ruth Bader Ginsburg on Friday instantly upended the nation’s politics in the middle of an already bitter campaign, giving President Trump an opportunity to try to install a third member of the Supreme Court with just weeks before an election that polls show he is currently losing.
The White House had already made quiet preparations in the days before Justice Ginsburg’s death to advance a nominee without waiting for voters to decide whether to give Mr. Trump another four years in the White House. Senator Mitch McConnell, the Republican leader, vowed Friday night to hold a vote on a Trump nominee but would not say whether he would try to rush it through before the Nov. 3 vote in what would surely be a titanic partisan battle.
The sudden vacancy on the court abruptly transformed the presidential campaign and underscored the stakes of the contest between Mr. Trump and former Vice President Joseph R. Biden Jr., his Democratic challenger. It also bolstered Mr. Trump’s effort to shift the subject away from his handling of the coronavirus pandemic and remind Republicans why it matters whether he wins, while also potentially galvanizing Democrats who fear a change in the balance of power on the Supreme Court.
If Mr. Trump is able to replace Justice Ginsburg, a liberal icon, it could cement a conservative majority for years to come, giving Republican appointees six of the nine seats. While Chief Justice John G. Roberts Jr. lately has sided at times with the four liberals on issues like immigration, gay rights and health deva, he would no longer be the swing vote on a court with another Trump appointee.
No one understood the broader political consequences of her death better than Justice Ginsburg, who battled through one ailment after another in hopes of hanging onto her seat until after the election. Just days before her death, NPR reported, she dictated this statement to her granddaughter, Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”
McConnell says Trump’s nominee to replace Ginsburg ‘will receive a vote’ in the Senate.
The Senate majority leader, Mitch McConnell of Kentucky, said late Friday that he would move forward with President Trump’s nominee to replace Justice Ruth Bader Ginsburg on the Supreme Court.
“Americans re-elected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” Mr. McConnell said in a statement. “Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Mr. McConnell was notably unclear, however, about the timing, whether he would push for such a vote before the election or wait until a lame-duck session afterward. Several of his members face tough election contests and might balk at appearing to rush a nominee through in such highly political conditions.
There was immediate reaction from a few Republican senators calling for a quick confirmation and vote before Election Day.
“I believe that the president should next week nominate a successor to the court, and I think it is critical that the Senate takes up and confirms that successor before Election Day,” Senator Ted Cruz of Texas said in an interview on Fox News. “This nomination is why Donald Trump was elected.”
Senators Martha McSally of Arizona and Kelly Loeffler of Georgia, two of the most endangered Republican senators facing re-election, each posted statements to Twitter calling for the Senate to vote on Justice Ginsburg’s replacement.
Still, stunned Republicans expressed initial skepticism on Friday night that Mr. McConnell would find enough votes to confirm a new justice in the weeks before the election. And some of them thought Mr. McConnell would also be unable to do so in a lame-duck session if Republicans lose the White House and control of the Senate.
Two former Senate Republican leadership aides close to Mr. McConnell read the concluding sentence of his statement — “President Trump’s nominee will receive a vote on the floor of the United States Senate” — to mean that he was not committed to pushing through the confirmation before the election and may wait until the lame-duck session.
Privately, some party strategists warned that if Democrats won the presidency and the Senate and Republicans seated a new justice before Joseph R. Biden Jr. and the new Senators were sworn in, Democrats would exact retribution by ending the filibuster and moving to pack the Supreme Court.
Democrats, for their part, moved swiftly to warn Republicans against a hasty confirmation process — echoing Mr. McConnell’s own comments from 2016.
“While no one will ever truly be able to replace Justice Ginsburg, a new president should fill the vacancy,” said Senator Amy Klobuchar of Minnesota, a member of the Judiciary Committee. “Just like Mitch McConnell said.”
Biden says ‘voters should pick the president, and the president should pick the justice.’
Joseph R. Biden Jr. said on Friday night that the Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s death should not be filled until after the presidential election.
“There is no doubt — let me be clear — that the voters should pick the president, and the president should pick the justice for the Senate to consider,” he told reporters after landing at New Castle Airport in Delaware following a campaign trip to Minnesota.
Mr. Biden, the former vice president, pointed to how Senate Republicans refused to consider the nomination of Judge Merrick B. Garland in the final year of President Barack Obama’s second term.
“This was the position the Republican Senate took in 2016 when there were almost 10 months to go before the election,” Mr. Biden said. “That’s the position the United States Senate must take today.”
The statement by Mr. Biden, who spent 36 years in the Senate and served as chairman of the Judiciary Committee, immediately put him at odds with Senator Mitch McConnell of Kentucky, the majority leader, who said a nominee by President Trump “will receive a vote” in the Senate.
Senator Kamala Harris of California, Mr. Biden’s running mate, also issued a statement: “Even as we focus on the life that she led and process tonight’s grief, her legacy and the future of the court to which she dedicated so much can’t disappear from our effort to honor her,” she said of Justice Ginsburg. “In some of her final moments with her family, she shared her fervent wish to ‘not be replaced until a new president is installed.’ We will honor that wish.”
Mr. Biden has previously promised to nominate a Black woman to the Supreme Court. Ms. Harris, in an Instagram Live conversation on Friday, said that doing so would be a priority for a Biden-Harris administration.
On Friday night, Mr. Trump did not address his plans for the Supreme Court in brief remarks to reporters before boarding Air Force One to return to Washington, after a rally in Minnesota.
“She led an amazing life,” he said. “What else can you say? She was an amazing woman. Whether you agreed or not, she was an amazing woman who led an amazing life.”
In his comments to reporters, Mr. Biden also spoke of Justice Ginsburg’s life and career, noting that he had presided over her confirmation hearings in 1993. He said she was “not only a giant in the yasal profession, but a beloved figure.”
“She practiced the highest American ideals as a justice, equality and justice under the law, and Ruth Bader Ginsburg stood for all of us,” he said.
Grief and tributes for Ginsburg as mourners gather outside the Supreme Court.
Scores of people filled the steps leading up to the Supreme Court in Washington on Friday night, crowding the plaza outside and spilling across the street in a candlelight tribute to Justice Ruth Bader Ginsburg.
Many said that it was a solemn celebration of Justice Ginsburg’s legacy in shaping American jurisprudence, and that it should not be corrupted by the political fights bound to flare up in the Capitol in the days to come.
“We, as citizens, have a responsibility to mourn her, and stand together and show that we deva about human life, which is something I think we’ve lost in the last six months,” said David Means, who was quietly discussing the justice’s legacy in the court’s plaza. “We need to be here — this is the place to be for anyone who believes in American ideals and progress in this country.”
Mourners began arriving at the court after dusk. At first, those gathered were so quiet that splashes from nearby fountains were audible across the plaza. But soon crowds swelled, filling the courthouse stairs, singing “Amazing Grace” and discussing the effects Justice Ginsburg had on the law.
Nearly all appeared to be wearing masks to protect themselves from the coronavirus, but social distancing was less observed, with many standing nearly shoulder to shoulder.
Becca Ebert of Seattle, who moved to Washington for a dual-degree program at Georgetown University, credited Justice Ginsburg with opening doors for women. “I know that I can go to law school because of a lot of the work that she did,” she said.
Others celebrated Justice Ginsburg’s role in landmark rulings on matters like gay marriage.
“As a proud L.G.B.T.Q.I.A. Hispanic male, it transcends so many different levels, in my community, in the community I was raised up in El Paso, Texas — it absolutely means so much, the work that she did,” said Richard Cerros of Washington.
A few moderate Republicans will play key roles in the court battle.
All eyes turned to the Senate’s more moderate Republicans on Saturday after Mitch McConnell, the majority leader, said late Friday that he would move ahead with a nominee from President Trump to replace Justice Ruth Bader Ginsburg on the Supreme Court.
The more moderate Republican Senators are a small group, and it is not clear whether they could control enough votes to block Mr. Trump’s nominee. Republicans have 53 votes in the Senate to the Democrats’ 47, and Vice President Mike Pence is allowed to break any ties.
Among the Republican members who hold the crucial votes are Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah.
Ms. Collins, who is facing a close re-election contest, told The New York Times this month that she would not favor voting on a new justice in October. “I think that’s too close,” she said.
She is already dealing with political fallout from voting for Justice Brett Kavanaugh in 2018 as he faced sexual assault accusations. Among likely voters in Maine, 55 percent said in a recent poll that they disapproved of that vote, compared with 38 percent who supported it.
Ms. Murkowski told Alaska Public Media, in an interview on Friday shortly before the announcement of Justice Ginsburg’s death, that she also opposed confirming a new justice before the election. But a statement she released Friday night about Justice Ginsburg’s death made no mention of her position on appointing a replacement.
Mr. Romney has stayed silent on the question of Justice Ginsburg’s successor. The lone Republican who voted to convict Mr. Trump during an impeachment vote this year, he released a statement that praised her legacy but did not weigh in on her replacement. A spokeswoman for Mr. Romney denied a claim by a Utah politician on Twitter that Mr. Romney would not confirm a nominee until after the inauguration next year.
Were those three Senators to vote against Mr. Trump’s nominee, only for Mr. Pence to push through the nominee by casting a tiebreaking vote, analysts said it would provoke a constitutional crisis. It would also add considerable pressure on Senate Democrats to support ending the filibuster and moving to pack the Supreme Court.
Democrats moved swiftly to warn against a hasty confirmation process — echoing Mr. McConnell’s own comments as he blocked President Barack Obama’s nomination of Merrick Garland in 2016.
“While no one will ever truly be able to replace Justice Ginsburg, a new president should fill the vacancy,” said Senator Amy Klobuchar of Minnesota, a member of the Judiciary Committee. “Just like Mitch McConnell said.”
Trump updated his list of potential Supreme Court nominees last week. Now it’s of intense interest.
President Trump, who counts his two Supreme Court appointments as among his greatest successes, last week issued a new list of 20 potential nominees to the court. There was no vacancy at the time, and the exercise seemed aimed at focusing attention on an issue that had helped secure his election in 2016.
With the death of Justice Ruth Bader Ginsburg on Friday, the list has become the subject of intense interest.
In 2016, similar lists helped persuade wary conservatives to support his unconventional candidacy, particularly because the death of Justice Antonin Scalia that February had created a vacancy. That the new list, which included three senators and two former solicitors general, was issued when there was no vacancy suggested that the move had political aims.
Mr. Trump now has about 40 potential nominees to choose among. Before listing the new candidates last week, he singled out three judges from earlier lists who are widely believed to remain front-runners: Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit, in Chicago; Thomas M. Hardiman of the Third Circuit, in Philadelphia; and William H. Pryor Jr. of the 11th Circuit, in Atlanta.
The new list included three Republican senators: Tom Cotton of Arkansas, Ted Cruz of Texas and Josh Hawley of Missouri. Over the nation’s history, it was not unusual for sitting senators to be named to the Supreme Court, though it has been almost half a century since a former senator sat on the court.
The new list included lawyers who had worked at the White House and in the Justice Department, notably Noel J. Francisco, who recently stepped down as solicitor general, having defended many of Mr. Trump’s policies and programs before the justices, as well as a number of federal appeals court judges.
All of his candidates, Mr. Trump said, were judicial conservatives in the mold of Justice Scalia and two current members of the court, Justices Clarence Thomas and Samuel A. Alito Jr.
Mr. Trump called Justice Ginsburg a “titan of the law” and a “fighter to the end” in a statement issued hours after her death on Friday.
“Today, our nation mourns the loss of a titan of the law,” Mr. Trump said in the statement, which was posted on his Twitter account late on Friday evening.
“Renowned for her brilliant mind and her powerful dissents at the Supreme Court, Justice Ginsburg demonstrated that one can disagree without being disagreeable toward one’s colleagues or different points of view,” Mr. Trump said. “Her opinions, including well-known decisions regarding the kanunî equality of women and the disabled, have inspired all Americans, and generations of great kanunî minds.”
Fresh discussion of court packing, a high-stakes move, has Democrats divided.
Justice Ruth Bader Ginsburg’s death on Friday revived talk of an idea that has been bandied about for years but, until recently, not feasibly considered by people in a position to enact it: court packing.
The term is commonly associated with President Franklin D. Roosevelt, who pushed legislation in 1937 that could have expanded the Supreme Court from nine to as many as 15 justices.
More than eight decades later, the idea of expanding the court is back. Mr. McConnell’s refusal to hold a Senate vote on Merrick Garland, who was nominated to the court in 2016 by President Barack Obama after the death of Justice Antonin Scalia, led some Democrats, including the presidential candidate Pete Buttigieg, to suggest expanding the court. They argued that Republicans had “stolen” a seat that should have been filled by Mr. Obama, and that Democrats would be justified in adding seats to shift the ideological balance back.
Republicans have called the idea radical and undemocratic, and some Democrats have feared that it could backfire. Joseph R. Biden Jr., the Democratic nominee, rejected the idea last year, telling Iowa Starting Line, “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”
Mr. McConnell’s declaration on Friday that the Senate would vote on Mr. Trump’s nominee to replace Justice Ginsburg added fuel to the fire, with progressive activists and at least one senator calling publicly for court packing.
“Mitch McConnell set the precedent,” Senator Edward J. Markey, Democrat of Massachusetts, tweeted on Friday night. “No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
Obama praises Ginsburg as ‘a warrior for gender equality.’
Former President Barack Obama on Friday called Justice Ruth Bader Ginsburg “a warrior for gender equality” who helped Americans see the perils of gender discrimination.
As a litigator and later a jurist, “Justice Ginsburg helped us see that discrimination on the basis of sex isn’t about an abstract ülkü of equality; that it doesn’t only harm women; that it has real consequences for all of us,” Mr. Obama said in a statement issued just before midnight and later published on Medium. “It’s about who we are — and who we can be.”
Mr. Obama said Justice Ginsburg had “inspired the generations who followed her, from the tiniest trick-or-treaters to law students burning the midnight oil to the most powerful leaders in the land.” The first group was an apparent reference to children who dressed up in “R.B.G.” costumes for Halloween.
Mr. Obama also weighed in on the contentious issue of when Justice Ginsburg’s successor should be nominated to the Supreme Court.
“A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment,” Mr. Obama, whose own nominee for the court, Judge Merrick B. Garland, was blocked by Senate Republicans, said in the statement.
”The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle,” Mr. Obama added. “As votes are already being cast in this election, Republican senators are now called to apply that standard.”
Former President Bill Clinton, who nominated Justice Ginsberg to the Supreme Court in 1993, praised her on Friday as “one of the most extraordinary justices ever to serve on the Supreme Court.”
“Ruth Bader Ginsburg’s life and landmark opinions moved us closer to a more perfect union,” Mr. Clinton wrote on Twitter. “And her powerful dissents reminded us that we walk away from our Constitution’s promise at our peril.”
During Mr. Obama’s second term, Justice Ginsburg shrugged off a chorus of calls for her to retire in order to give a Democratic president the chance to name her replacement.
She planned to stay “as long as I can do the job full steam,” she would say, sometimes adding, “There will be a president after this one, and I’m hopeful that that president will be a fine president.”
Reporting was contributed by Maggie Astor, Peter Baker, Reid J. Epstein, Jacey Fortin, Maggie Haberman, Carl Hulse, Mike Ives, Thomas Kaplan, Adam Liptak, Jonathan Martin, Benjamin Mueller and Zachary Montague.