President Donald Trump, trailing in public polling and lagging in fundraising, wants a new Supreme Court justice confirmed before the election to be able to break potential ties on the court over election litigation.
“In terms of time, we can go to January 20th, but I think it’s better if you go before the election because I think this scam that the Democrats are pulling — it’s a scam — the scam will be before the United States Supreme Court. And I think having a four-four situation is not a good situation, if you get that,” Trump told reporters at the White House Wednesday of the eight-person Supreme Court that exists following the death of Justice Ruth Bader Ginsburg.
What the president calls a “scam” in this context is the increased use of entirely legal and secure mail-in ballots in states across the country, a bipartisan move taken by state and local governments in response to the coronavirus pandemic, and backed by both Republican and Democratic officials in those jurisdictions.
“I don’t know that you’d get that. I think it should be eight-nothing or nine-nothing,” Trump said of a potential Supreme Court election case. “But just in case it would be more political than it should be, I think it’s very important to have a ninth justice.”
Republicans, led by Senate Majority Leader Mitch McConnell, R-Ky., of course did not share that view about there being a need for a ninth justice to be seated before voters went to the polls for the 2016 presidential election, holding open the seat vacated in February 2016 when Justice Antonin Scalia died.
The high court effectively decided the 2000 election when it voted five-to-four in Bush v. Gore to halt recount efforts, which resulted in George W. Bush securing the state of Florida and an Electoral College majority.
The president’s transparency about his intentions will assuredly lead to calls for Trump’s nominee, expected to be selected from a list of five women finalists on Saturday, to recuse herself from cases that may affect whether Trump or Democratic nominee Joe Biden secures the Electoral College majority needed to be sworn in as president in January.
“I think this will end up in the Supreme Court. And I think it’s very important that we have nine justices, and I think the system is going to go very quickly. I’ll be submitting at five o’clock on Saturday the name of the person I chose for the most important of all positions,” he said of the election.
Republican Sen. Josh Hawley of Missouri, a former state attorney general, was present at the White House event, and he was asked by Trump to respond to a media question about the Supreme Court confirmation timeline.
“I think absolutely we can get it done, and we can do it even with the full complement of hearings,” Hawley said. “We’ve got the time to do it. We’ve got the wherewithal to do it, and I think we should have a vote before the election for the reason the president articulates.” Hawley is on a list Trump released recently of possible Supreme Court nominees.
The president’s remarks drew a quick response from the advocacy group Demand Justice, which is helping lead the opposition to Trump's judicial nominations.
“Donald Trump isn’t just trying to steal a Supreme Court seat — he’s trying to steal the election along with it. Even though Republicans may claim to already have the votes to confirm Trump’s pick, Democrats cannot afford to compartmentalize this Supreme Court fight because the fate of the election itself may ride on it,” executive director Brian Fallon said in a statement.
Before commenting on the connection between his Supreme Court nominee and the outcome of the presidential election, the president spoke at some length about his concerns about “unsolicited” mail-in ballots.
Trump’s comments, which came at an event with Attorney General William Barr and a number of Republican state attorneys general, were prompted by West Virginia Attorney General Patrick Morrisey making a statement supporting some of the president’s past claims on social media about ballots.
“This is going to be one of the great catastrophes and one of the great embarrassments in the history of our country, beyond elections,” Trump said. “And the Democrats know it, and they’re setting it up for chaos.”
Trump went further on Wednesday, suggesting without providing documentary evidence that foreign governments could seek to meddle in the U.S. election by sending fraudulent ballots.
“If foreign countries want to, this is an easy system to break into because they’ll do counterfeit ballots. They’ll do counterfeit ballots by the millions,” he said. Such claims have no basis outside of conspiracy theories and do not reflect the security protocols jurisdictions have in place, such as barcode matches to voters and other measures.