Charles Bowyer | Posted: Sep 21, 2020 12:31 PM
In the wake
of Supreme Court Justice Ruth Bader Ginsburg’s death, our political situation,
already intensely volatile, has been completely upended – but perhaps not in
the way that you think. The sudden opening of a spot on the Supreme Court has
dramatically changed the stakes of the election, but there is
little evidence that it has changed the fundamentals of this election.
Nevertheless, this might be one of those rare instances in which the perennial
politician’s refrain that “this is the most important election of our lifetime”
might actually be accurate.
But will
President Trump be able to fill the vacancy? The underlying political calculus
here is difficult to predict: on the one hand, it might very well be in Trump’s
best interest to delay a vote until after the election to drive voter turn-out,
as opinion polling shows that a majority of Americans want the winner of the
election to choose the next Supreme Court Justice. Trump’s interests and
Majority Leader McConnell’s interests are not perfectly aligned on this matter
– McConnell would suffer a massive backlash from his base if he let an
opportunity to secure a conservative majority on the court for decades slip
through his hands. But given how slim the margins of this election may be,
Trump could be ensuring his own defeat by insisting on appointing a new Justice
before the election.
As for who
that Justice may be, PredictIt puts potential Trump nominees Amy Coney Barrett
and Barbara Lagoa at roughly 57% and 38% respectively of being nominated –
keeping in mind that these probabilities add up to slightly over 100% due to
the profit margin maintained by the book-maker.
Prediction
markets are far from perfect, and given how tumultuous our political system is,
it is far from inconceivable that the underlying data will change. Still, as of
the morning of September 21st, the people with money on the line are
close to certain that the nominee will either be Judge Barret or Judge Lagoa.
What follows
is far less certain. If Trump confirms a new Supreme Court Justice before the
inauguration, and Democrats take the presidency and the Senate, there will be
tremendous pressure on them to pack the court (despite Ginsburg having decried
that idea in the past). Senate Democrats Schumer and Blumenthal have both
stated that “nothing is off the table.” Democratic Representative Jerry Nadler
has called for an expansion of the Court if Republicans push through a nominee.
If the Democrats win, it is far from certain that the Supreme Court will stay
at nine seats. That is still a big if, however, as Justice Ginsburg’s death has
actually shifted the odds of Democrats winning the Senate and Presidency very
little.
Before
Justice Ginsburg’s death, the political prediction market PredictIt gave Biden
an implied 58% chance of winning, and Trump an implied 45% chance of winning.
As of this writing, it's at 58% for Biden and 46% for Trump. The implied chance
of the Democrats winning the Senate and the House was 54% before Justice
Ginsburg’s death, and is 55% as of this writing. The new Supreme Court opening
has not yet changed the underlying data about who will win and who will lose
this November.
But Justice
Ginsburg’s death is nonetheless a momentous political event. Let’s say, for the
sake of argument, that Republicans are not successful in
filling Justice Ginsburg’s vacant seat. That leaves the Supreme Court at 5-3 in
favor of Republican appointees, though Chief Justice John Roberts is far from a
reliable conservative.
Given that
this election will almost certainly be contested, and quite possibly contested
at the Supreme Court, the lack of a full court would have implications that are
difficult to fathom. And even if the prediction market’s assumptions are
correct and Republicans do appoint a new Justice, the Democrats will call any
ruling in Trump’s favor illegitimate and refuse to accept the results. What
happens after that is anyone’s guess.
No comments:
Post a Comment