Editorial: Death of Supreme Court Justice Ruth Bader Ginsburg adds to US election uncertainty

The American flag blows in the wind after it was lowered to half-staff in Washington, after Supreme Court Justice Ruth Bader Ginsburg died of metastatic pancreatic cancer at age 87. Photo / AP

The combustible United States election has just had a tanker-worth of petrol thrown on it.

After months of a pandemic, economic pain, protests, wildfires and hurricanes, warnings of potential voter fraud, and with a highly divisive incumbent seeking re-election, the election has been hit with an "October surprise" a month early.

The death of pioneering Supreme Court Justice Ruth Bader Ginsburg, just 46 days from election day and as early voting is under way, has huge political consequences, stemming from the highly charged role of the court in the US system.

It puts the future of social issues such as abortion, healthcare and same-sex marriage on the ballot alongside the pandemic, economy, climate change and racial justice.

It is unfortunate that Ginsburg's death cannot simply be mourned and her life celebrated without thought given to the political fallout.

Standing a tiny 1.5m tall, Ginsburg was a giant for women's rights and the court's second female justice after Sandra Day O'Connor. Ginsburg died of complications from cancer.

'born the year Eleanor Roosevelt became First Lady...' https://t.co/vudBSCwRRP via @NewYorker

— Susan Glasser (@sbg1) September 19, 2020

Appointed to the court by former President Bill Clinton in 1993, Ginsburg was nicknamed the Notorious RBG as a nod to her battles for women and minorities. She also showed great resilience through five fights with cancer and other illnesses.

The crowds that gathered outside the court in Washington on Saturday were a testament to her influence.

According to NPR, days before her death Ginsburg said: "My most fervent wish is that I will not be replaced until a new president is installed."

But US President Donald Trump is expected to take the chance to nominate and get appointed for life a third conservative justice - tilting the ideological balance of the court further right, with a six-to-three majority. Four Republican senators would need to break ranks to halt a nomination.

Senate Majority Leader Mitch O'Connell was quick to promise that "President Trump's nominee will receive a vote on the floor of the [Republican-controlled] US Senate".

Analysis: Why Mitch McConnell intends to confirm a new Supreme Court justice now, when he wouldn’t in 2016 https://t.co/nCyAiztLOZ

— The Washington Post (@washingtonpost) September 19, 2020

It is uncertain whether the Republicans can push a nominee through before the election. It would be right on the edge of the earliest time periods it has taken to confirm previous candidates - and some Republican Senate incumbents are in danger of losing their seats.

The Republican leadership may use the promise of a court replacement to enthuse the party's base. Should Trump lose the election, the Senate could try to confirm the nominee in the "lame duck" period before the new presidential term begins in January.

When Justice Antonin Scalia died, McConnell refused to consider former President Barack Obama's nominee in 2016, saying it was an election year.

Democratic presidential nominee Joe Biden said on Saturday that "the voters should pick the president and the president should pick the justice for the Senate to consider".

"Biden is at or within 2 points of majority support in enough states to lock down an Electoral College victory, compared with Clinton’s low- to mid-40s scores in mid-September 2016 in the same states" https://t.co/5NcGMnAGVL via @politico

— Shibley Telhami (@ShibleyTelhami) September 19, 2020

The stage is now set for a bitter partisan fight. There have been calls for a Democratic administration to expand the number of justices, for fixed-term limits for the Supreme Court and other political reforms.

Republican pollster Neil Newhouse told the Washington Post: "This energises both liberals and conservatives, it ratchets up the intensity, and it puts a focus on what's at stake in this election."

There are some nightmarish possibilities. If the election is close, the result could be disputed as in 2000 and the Supreme Court asked to rule on it. Should Trump win again through the Electoral College but not with a popular vote majority, it would be the third time a Republican has won that way in 20 years. Then there's the real fear of post-election violence.

Former Obama adviser David Axelrod called the court moves "another log in an already roaring fire".

The flames could burn well beyond November's election.