Trump’s Supreme Court Nominee – a push to salvage his flailing campaign

Ziauddin Choudhury

Under normal circumstances it is expected of a US President to nominate to the Supreme Court a

candidate of his choice when a vacancy arises. The candidate, who would normally meet the standard
requirement of a jurist to occupy that august office, however, has to also be the choice of the political
party that the President belongs to since the choice has to pass muster in the Senate. That partisan
choice makes the nomination of a judge in the highest court of the country politically fraught, and
subject of great angst among political parties and the country at large.

The Supreme Court with a total number of nine judges in the bench is the third arm of government in
USA. It acts as a referee also when the check and balance between the other arms, the executive
(President) and the legislature (Congress) comes to a deadlock and the subject of contention is thrown
up to the Supreme Court for a decision. As an upholder of the constitution the Court reviews the dispute
and rules following the constitution. This dispute may not be just over a piece of legislation or
Presidential order, this dispute may even concern election of the President himself. The landmark
decision of the court in this regard was in 2000 over the counting of votes in Florida which led to the
election of President Bush over his democratic contender Alan Gore. In a five to four decision the court
decided not to ask the Florida county where the votes were in dispute not to be recounted making Bush
the winner with a thin margin. Such is the power of the Supreme Court. Hence, the angst.

The opportunity to fill the Supreme Court with another candidate of their choice, a conservative jurist of
known background, arose last month with the death of Ruth Ginsburg, one of the four conservative
judges in the Supreme Court. She had battled with cancer for last several years, but the eighty-seven
year old judge held on to her seat with unfailing loyalty to her liberal and progressive ideas since 1993.
Her death, although not unexpected, gave a sudden fillip to Donald Trump and the Republican Party to
fill the bench with more conservative bias, such that the Supreme Court will rule in favor of conservative
ideas and principles for years to come.

Given that a Supreme Court justice is appointed for life, death of Justice Ginsburg gave both Republican
Party and Donald Trump a golden opportunity. To the Republican Party, to fulfill their dream of packing
the Supreme Court with conservative judges. To Donald Trump, a chance to placate the Republicans
some of whom might have been displeased with his continuing lack luster performance and over the top
bravado about his Presidency that has so far yielded a world wide negativity about him, and lowered the
prestige of the United States. Added to his travail is the pandemic of COVID-19 that has been ravaging
the country with more than two hundred thousand deaths and counting. He has not only been unable to
devise a strategy to contain the pandemic, he has fueled more controversy about containment of the
virus with his mendacious claim of presenting the country with a vaccine before November elections
when the scientists view this achievement as next to impossible.

So why is Donald Trump gloating over his nomination of a conservative jurist (Amy Barrett) and the
Republican dominated Senate is ensuring him a speedy confirmation process? Two different purposes
although they complement each other. Trump’s intent is to kill two birds with one stone—pleasing the
Republicans and his conservative base, and to ensure that should a dispute over next Presidential
election land in the Supreme Court, a bench loaded with conservative judges will favor him. This is a long
shot, but at least that is an additional motivation for Donald Trump. He is not only appealing to his
rather dormant Republican, a part of which may have lost their enthusiasm for his campaign, he is also
trying to cheer up the Evangelical Christian community which is wedded to an agenda of anti-abortion
and other deeply religious subjects which they fear are in danger with a liberal Supreme Court. The
nominee of President Trump, Amy Barrett, is a devout catholic with her known opposition to abortion.
In the mental calculation the Donald Trump (if one gives him that credit) has made, his nominee will be
not only a darling of the deeply conservative section of the Republican party, but also others as well
because this nomination will mean a stranglehold of the judiciary by the conservatives for years to
come. And Donald Trump will also reap benefit from a conservative bench should a decision on the next
elections need to be made by the Supreme Court.

But how likely is the second outcome? Is it likely that there can be a dispute in the next Presidential
elections that may require intervention of the Supreme Court?

As is probably known to most people in the outside world, US President is elected indirectly by an
electoral college of 538 electoral votes. The electoral votes are allocated to the states on the total
number of congressmen and senators each state has. The larger the state, greater is its number of
electoral votes. Only Washington DC which does not have any representation in the Congress, gets three
electoral votes, minimum allocated to any state. The winning candidate must get at least 270 of 538
electoral votes.

The way the electoral votes work is that the party that garners majority of popular vote in a state wins
the whole package of electoral votes allocated to that state. The three states which have the highest
number of electoral votes are California (55), Texas (38), and Florida (29). With only a few exceptions,
states run elections governing almost every facet of the electoral process, including most aspects of
voter eligibility, the location and hours of polling places, candidate access to the ballot and the members
of the state’s Electoral College. Therefore, any electoral challenge must begin, and often end in state
courts. A candidate who challenges the result in any particular state must file in a state court a
complaint stating what aspect of electoral process was not observed by the state. Congress has also
provided that each state shall be the final arbiter of any election dispute.

The Supreme Court can intervene only if it can be shown or argued that the election process has
violated fundamental rights of an individual such as Equal Protection Clause under 14 th Amendment of
the constitution which mandates equal treatment of all citizens in the legal system. The only case in
history under that provision was in 2000 where a dispute arose over the use of different counting
standards in different counties of Florida which led to a demand for recount in one Florida county. The
Supreme Court, however, ruled against a recount upholding the overall results in the state that went in
favor of George Bush.

Although it is too early to say that upcoming elections will be a blowout for Trump’s opponent Biden or
it will be close, the fact is that it is too far out a thought that this election will end up in the lap of the
Supreme Court. It is far too early and far too presumptuous to think that way. Donald Trump may wish
that it ends that way with his unproven allegations of possible fraud in postal balloting. That is why he
may be thinking that a conservative led Supreme Court will chose his case in the event it is asked to rule
on elections. But it may not happen. What will happen, however, that with a Republican majority
Senate, another conservative jurist may just sit in the chair vacated by one of the most liberal,
progressive, and high-minded justices in the Supreme Court for years to come.