It is an irony she would hate — but the death of the liberal icon Ruth Bader Ginsburg gives Donald Trump his best chance to win the presidential election and a further opportunity to cement his legacy as a profoundly important, historical president.
Ginsburg was a wholly admirable woman who was also the most left liberal of the judges of the Supreme Court.
Trump could replace her with a legal conservative, a judge who abides by the letter of the constitution and the law rather than interpreting social mores, and give the court a six/three conservative majority.
Trump is president only because millions of American Christians thought the opportunity for a conservative in the White House to appoint good judges out weighed the difficult aspects of his personality.
Trump has so far appointed two Supreme Court judges — Neil Gorsuch and Brett Kavanaugh — and hundreds of federal court judges. If Trump loses to Joe Biden on November 3, these judges will nonetheless continue to shape the US judiciary for a generation.
Trump has said he will appoint a woman and that’s smart. It is a telling sign of how toxic and dysfunctional American politics have become that nominees to the Supreme Court are rated like politicians for their political views.
The US is fundamentally different from Australia in this way. Its political system is in permanent gridlock, and its founding documents use expansive and abstract terms. As a result the most contentious issues, especially social ones such as free speech, separation of church and state, religious freedom, gay marriage, abortion rights and many others, are decided not by Congress or the elected president, but by the Supreme Court.
The Supreme Court is the most powerful institution in the US. It can strike out legislation, declare presidential directives unlawful and over rule state legislatures and courts.
In 2016 Trump was a difficult candidate for church going Christians because of his personal life. I followed the debate about him in many Christian journals and forums. The overwhelming pro-Trump argument was that he would appoint judges who would protect religious freedom and not try to impose de facto liberal ideological conformity across American institutions.
Nothing mobilised conservative Christian voters in Trump’s favour more than the judges issue. Trump routinely boasts of his judicial appointments as his most important accomplishment as president.
Many American Christians see Trump as reminiscent of Cyrus the Builder, the Old Testament Persian emperor who, though not Jewish himself, allowed the Jewish people to rebuild the temple in Jerusalem and end their Babylonian captivity.
But the timing is desperately tight. There are only 43 days to the election. Trump will pick his nominee next week and the Republicans, with a 53-47 majority in the Senate should be able to get it through if they move at warp speed and hold their numbers.
A 50-50 Senate tie on a Trump nominee would be resolved in the President’s favour by Vice-President Mike Pence exercising a casting vote. So Democrats would need to peel off four Republicans to defeat the nomination.
One favoured judge, Barbara Lagoa, is a Hispanic woman from Florida. It is appalling that Supreme Court judges have to be considered in these terms but the identity politics and the demographics would potentially work wonderfully for Trump.
Democrats would be forced to oppose and probably demonise an admirable Hispanic woman from the election’s critical swing state.
Another leading contender is Amy Coney Barrett, a conservative Catholic with five biological and two adopted children.
Both Senator Diane Feinstein — who said disparagingly to Barrett in an earlier court confirmation hearing “the dogma lives loud in you” — and vice-presidential candidate Kamala Harris have seemed to cast doubt on the right of believing Catholics to serve in judicial office.
Harris complained to another federal court nominee of his membership of a non-political Catholic charity, because that charity, like all official Catholic bodies, is officially pro-life rather than pro-choice.
The Democrats’ opposition to either of these two women would probably generate an ugly, vicious, sectarian fight in the last weeks of the presidential campaign. It could make the 2018 battle over the appointment of Kavanaugh to the Supreme Court look tame.
It will motivate Trump’s base and remind people why they voted for him, just as it may motivate his diehard opponents. It will certainly change the subject in the campaign’s remaining weeks.
Unlike much contemporary political sound and fury, it will be about a matter of substance, as vigorously opposed world views clash over one of the few institutions in America still empowered to make real decisions.
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