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What Ruth Bader Ginsburg’s Death Could Mean For 2020 And The Supreme Court

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Supreme Court Justice Ruth Bader Ginsburg passed away on Friday night — a pivotal moment in the history of the nation’s highest court. Ginsburg’s death is one of the biggest developments yet in 2020, a year that has already included the impeachment of the sitting president, a deadly virus killing nearly 200,000 Americans and an economic collapse. Ginsburg not only reshaped U.S. jurisprudence — in particular, as an advocate for women’s rights — but she became a cultural and political icon too, especially for liberals and progressives.

Indeed, her death, and the fight to fill her seat, may have a number of political implications. Those will become clearer over the next days and weeks, of course, with the election right around the corner, but here’s a first look at what some of those potential implications might be:

1. Republicans have to decide whether they will break from their “no election year confirmations” stance from 2016

Back in 2016, when Senate Republicans blocked the nomination of then-President Barack Obama’s Supreme Court nominee, Merrick Garland, Republican Senate Majority Leader Mitch McConnell argued that voters should get to choose the president and that president should get to pick the next justice. Then-Justice Antonin Scalia died in February 2016, and Obama nominated Garland that March.

Ginsburg’s death comes even closer to the 2020 election — 46 days away. In all of American history, we have had only two Supreme Court vacancies closer to Election Day than we have now. In both instances, the incumbent president won reelection and nominated a replacement shortly after Election Day. (In terms of the actual confirmation, one was confirmed in December, one in March.) So by historical standards — and, notably, McConnell’s own previous standard — Trump would not nominate anyone unless he won a second term in November, since the election is less than two months away.

Filling a seat this close to the election is unheard of

Supreme Court vacancies in presidential election years, by how many days before the election they occurred and whether a replacement was confirmed before the election

Before election, replacement was…
Justice Date of Vacancy Days before Election Nominated Confirmed
S. Minton Oct. 15, 1956 22
R. Taney Oct. 12, 1864 27
R. B. Ginsburg Sept. 18, 2020 46 ? ?
R. Trimble Aug. 25, 1828 67
J. McKinley July 19, 1852 106
C. E. Hughes June 16, 1916 144
P. V. Daniel May 31, 1860 159
H. Baldwin April 21, 1844 194
M. R. Waite March 23, 1888 228
A. Scalia Feb. 13, 2016 269
A. Moore Jan. 26, 1804 281
J. P. Bradley Jan. 22, 1892 291
O. W. Holmes Jan. 12, 1932 301
J. R. Lamar Jan. 2, 1916 310

In the early 19th century, the election was held over the course of multiple days; the number of days before the election is the number of days before voting began.

Source: U.S. Supreme Court, U.S. Senate

Back in 2016, Democrats pushed forward Garland’s nomination. Unsurprisingly, the parties have now flipped their positions. McConnell said on Friday night that he intends to allow a floor vote to confirm a Trump nominee, while Democrats are suggesting that the winner of the election should choose the next justice.

This is a huge opportunity for Republicans — to have six GOP-appointed judges on the court at once. It is hard to imagine they will pass it up. It’s not guaranteed that 49 of the other 52 Senate Republicans would push forward and support a Trump nominee, particularly if Trump lost the election, but it seems likely.

2. It’s not clear if a confirmation process could finish before the election.

It would be unusually fast to finish the entire confirmation process in less than 46 days, the time left before the Nov. 3 election. (The average confirmation process since the Harry Truman administration has lasted 50 days.) That doesn’t mean there isn’t enough time for Trump to confirm a new justice, but it would be on the fast side.

Nevertheless, it’s possible that sometime in October, a judge has been nominated and perhaps confirmation hearings are taking place, right on the eve of the election. This creates the possibility that Trump loses the election and perhaps Republicans lose control of the Senate, but the lame duck president and some senators who have lost reelection put a justice on the Supreme Court — a move that will enrage Democrats. Alternatively, Trump could win the election and see a new justice appointed before he even begins his second term.

3. Ginsburg’s death creates new dynamics if there is an election-related dispute before the Court

With a 5-4 GOP majority, Chief Justice John Roberts has been a swing vote, and one who occasionally joins with the Court’s Democratic appointees. Whether the court is 5-3 (with Ginsburg’s seat not filled) or 6-3 (with a Trump nominee seated), Democrats would need two votes from GOP-appointed justices to win a case. So if there is some kind of electoral dispute that gets to the court, that’s bad news for Democrats. It raises the specter of a 4-4 tie in a pivotal election-related case, a potential deadlock that could complicate knowing who won the presidential race.

4. The future of the Court is now an even bigger electoral issue

Both parties already intensely cared about the Supreme Court. But now, there is the potential for a Supreme Court nomination (or discussion of an open seat) in the middle of the election. For Trump, this choice is a big opportunity in two ways. First, the Supreme Court nomination process might distract the media and public’s attention away from his mistakes in handling the COVID-19 outbreak and give him a way to galvanize conservatives who really care about judicial nominations and issues like abortion. Secondly, Trump is struggling in particular with women voters. Trump may pick a woman to replace Ginsburg and make his nominee part of his pitch to women voters.

Biden, too, would likely need to talk about judicial issues more and perhaps describe the kind of person he would put in this seat. (He has already promised to nominate a Black woman in the event of a Supreme Court vacancy if he becomes president.) Also, Democratic vice-presidential nominee Kamala Harris is on the Senate Judiciary Committee, so she would be involved in any kind of confirmation process.

This is also now a big issue in Senate races. GOP incumbents like Sen. Martha McSally of Arizona and Sen. Susan Collins of Maine may be faced with the choice of irritating GOP voters if they oppose a Trump pick or irritating more moderate voters if they back someone who is viewed as too conservative. This is a particularly acute issue for Collins, who is struggling in her reelection campaign in part because she backed Trump Supreme Court nominee Brett Kavanaugh in 2018.

More broadly, one of the most divisive elections in America history will now likely be even more tense and fraught.

5. Who Trump chooses is a really big deal

Assuming that Trump opts to nominate someone, who he chooses is a really big deal. With the election looming, does he nominate someone more moderate than he otherwise would have? Does he nominate a woman? A woman of color? Someone with a long record of opinions or someone who is more unknown?

6. If there are six GOP-appointed justices on the Supreme Court, law in America could fundamentally move to the right

This is the most important implication, even if it is not the most immediate. If Trump is able to appoint a justice who is similar in ideology to Neil Gorsuch and Kavanagh, his first two picks, it seems likely that abortion and affirmative action could be severely limited in the future, the Affordable Care Act overturned and a host of other conservative rulings issued. That is not guaranteed, but seems quite possible.

Trump and Republicans putting another justice on the bench either pro or post-election, in the case that he Trump loses, is also likely to trigger an aggressive Democratic response that could have long-lasting implications. Democratic activists were already floating the idea of increasing the number of justices on the Supreme Court to make up for the Garland seat, and I would expect so-called court-packing ideas to accelerate if Trump puts another conservative justice on the court before or right after he loses a presidential election.

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Toronto FC hoping to make MLS Cup run having spent much of 2020 far from home

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On a recent Thursday in Hartford, Conn., Toronto FC goalkeeper Quentin Westberg pondered the dichotomy of wanting to reach MLS Cup on Dec. 12, but also desiring to see his family again. Meanwhile, Jim Liston, the team’s director of sports science, was planning a trip to Lowe’s to buy 15 garbage cans so players could have an ice bath after training. As for manager Greg Vanney, he was fretting about his team’s health and the lack of practice time their schedule was affording.

Such is the life of a team as it attempts to not only navigate its way through the COVID-19 pandemic, but has been forced to do it away from home.

Due to travel restrictions between the U.S. and Canada, TFC — like the league’s other two Canadian teams, Montreal Impact and Vancouver Whitecaps — set up a “home” base in the U.S. for the remainder of the season; Toronto were stationed in Hartford. (Vancouver Whitecaps took roost in Portland, ground-sharing with Timbers, while Montreal Impact split use of New York Red Bulls’ facilities in Harrison, N.J.) This was on top of nearly every team spending nearly a month inside a bubble back in July at the MLS is Back Tournament outside Orlando, Florida.

The Reds spent about seven weeks back in Toronto as they played a series of matches against Canadian teams. In mid-September, the remainder of the regular season — and the temporary move to Hartford — beckoned. The vagabond nature of the campaign is what led Liston to joke that he was willing to discuss “whatever five seasons” the team has been through so far. But for Vanney and the players, the campaign has required a special kind of focus.

“A lot of what we’ve done here, and what we try to preach here is just control the controllables, and don’t get too drawn into the things you can’t,” Vanney told ESPN. “Roll with it, and make the best out of whatever the situation is.”

Stream FC Daily on ESPN+
– 2020 MLS Playoffs: Who’s in, schedule and more
– MLS on ESPN+: Stream LIVE games and replays (U.S. only)

Toronto has largely succeeded in spite of its odyssey. While there was disappointment at missing out on the Supporters’ Shield to the Philadelphia Union, TFC went 7-3-2 during its Hartford sojourn and finished with the second-best record in the league. But the challenges have still been immense. Simply being out of one’s home environment is difficult enough, but the time spent away from family and loved ones weighs heavy on the psyche, even as Vanney has given players the occasional trip back to Toronto — under quarantine — to reconnect with loved ones.

“It’s just very different, very challenging and emotionally exhausting,” Westberg said of his experience while based in Hartford.

Westberg has arguably had it tougher than most. The TFC goalkeeper is married with four children, including a baby girl who was born in June. For that reason, Westberg and his wife, Ania, made the decision at the end of September that it would be better for her and their kids to head back to his native France so they could be surrounded by family. Westberg called it “the least bad decision,” but there are difficulties nonetheless.

“I’m a very even person, and this year has challenged me a lot,” he said. “I’m still pretty even, but I keep a lot to myself and for sure there’s some difficult days, seeing your family [struggle] from your absence.”

The inability to be home has affected the players and staff in other ways. In Toronto, there are ways of disengaging from the game. Being with friends, loved ones or even in familiar surroundings can be the best medicine in terms of forgetting a bad game or training session. But in Hartford, at the team’s hotel, that escape is nearly impossible even as players try to distract themselves by reading or taking online classes.

“You don’t really unplug,” Westberg said. “You FaceTime family, or this or that, but it’s too short. You’re 100 percent focused on your soccer, and your whole day basically relies on being ready for whatever soccer activity that you have next, whether it’s practice or game. It’s good for your physique, it’s optimal for the way you eat and the way you [train]. But mentally, you’re not as fresh as your body.”

That isn’t to say there are only negatives to the separation. There is also an us-against-the-world mentality that Toronto has adopted, given that their players and personnel are experiencing the season in a way that is vastly different than most other teams. The team staff has done what it can to make their surroundings a home away from home, whether it’s personalizing the locker rooms at Rentschler Field or having hotel staff brand the surroundings in TFC colors. The hotel went so far as to bring in a barista who could consistently give the players their coffee fix. Supporters groups have even sent down banners in a bid to convey the fact that the players are remembered.

The care that TFC takes for players has extended to families back home, with the club supplying meals to loved ones three times a week.

On the logistical side, Liston made sure that one of the gyms used at MLS is Back was brought to TFC’s hotel in Hartford, and he remarked that the food at the hotel is “arguably the best we’ve ever had on the road.”

There have also been efforts to create new routines. Assistant coach Jason Bent, aka DJ Soops, has been in charge of the pregame music selection for the past 18 months — no easy feat for a squad that has a considerable international presence. In Hartford, Bent has set aside Thursday nights to spin music in one area of the hotel. He’ll even go live on Instagram or Twitch for those who prefer to relax in their rooms.

“[We] opened it to players and staff and basically anyone that’s part of our bubble to come relax, listen to music and just enjoy each other’s company,” Bent said. “I enjoy making people happy so if it’s helping everyone even in the slightest, I have no problem arranging the set and spinning.”

For Vanney, the pandemic and operating outside of the team’s home market has meant any number of challenges. He said the team has used three different training facilities in Hartford, with varying field conditions. He recognizes that the trips home are vital for the mental health of his players and staff, but any breaks also mean less time spent on the practice field. The compressed schedule, which at times involved games every three or four days, has had an impact as well. Even the best-laid plans in terms of squad rotation were impacted as minor injuries began popping up.

“We end up with a lot of guys in different positions because they need special kinds of treatment or care to help them get fit and back to health,” Vanney said. “So it ends up being a lot of different things kind of going on all at once, and that’s been the challenge of it.”

Recovery from matches has been complicated by the fact that TFC doesn’t have access to the same level of facilities that it does at home — hence Liston’s emergency trip to Lowe’s to fashion impromptu ice baths for the players. Then there are the different ways the players occupy themselves on the road as compared to home, especially amid the pandemic.

“There’s really no life outside of the hotel,” Liston said. “[At home], you may go walk the dog in the afternoon or go for a walk with your wife or friend or girlfriend or family and you’re out and about. The recommendation [here] is to kind of stay put. So you’ve got a really active population and pro athletes, who we’re asking them to be sedentary the rest of the time, kind of stay in the hotel from a COVID and safety standpoint. That’s not optimal for recovery either.”

There are also the creature comforts of home that are no longer available on the road, which can impact sleep.

“Sleep is the number one tool for recovery, and that’s definitely been a challenge,” Liston said. “We do well-being questionnaires and the scores on quality of sleep, and hours of sleep, just drop.”

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Tom Barlow and Brian White seal Toronto’s fate in a 2-1 win for New York Red Bulls. Watch MLS on ESPN+.

Another change has been same-day travel, which has drawn mixed reactions from the TFC players and staff. Vanney and Westberg are generally in favor, saying it reminds them of when they each played in France. Flying back the same night also means a training day isn’t lost. Liston has a different perspective in that he prefers arriving the day before, and then leaving the same day.

“I think [same-day travel] makes for a really long day,” he said. “And there’s definitely a negative impact on performance, taking three bus rides and a plane ride before your game. You’re getting home — it can be 12:30, but it could also be 1:30 in the morning, and that’s where you know our well-being scores and sleep hours and quality just disappear. When you have so many games in succession, you can’t make up the sleep.”

With the playoffs set to begin for TFC on Nov. 24, the end is in sight, even as it makes for a complex — and even conflicting — set of emotions.

“This is the tricky part. I miss them a lot,” Westberg said of his family. “But in a way I want to see them as [late] as possible in December, because obviously, there’s this idea that we want to do well in the playoffs and we want to keep going. TFC has a history of setting high standards and high expectations. It’s a heavy load to carry but also an exciting one.”

Win or lose, it’s a season they’ll never forget.

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Bettman: NHL is mulling temporary realignment

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The NHL is considering a temporary realignment of its teams for the 2020-21 season due to COVID-19 travel restrictions, according to commissioner Gary Bettman.

Bettman said Tuesday that restrictions on travel across the Canadian border, as well as “limitations in terms of quarantining when you go from certain states to other states” within the United States, could mean the NHL creates a more regionalized alignment for its upcoming season.

“As it relates to the travel issue, which is obviously the great unknown, we may have to temporarily realign to deal with geography, because having some of our teams travel from Florida to California may not make sense. It may be that we’re better off — particularly if we’re playing a reduced schedule, which we’re contemplating — keeping it geographically centric and more divisional-based; and realigning, again on a temporary basis, to deal with the travel issues,” Bettman said during a 2020 Paley International Council Summit panel with fellow commissioners Adam Silver of the NBA and Rob Manfred of MLB.

The NHL board of governors has a meeting scheduled for Thursday which will provide a progress report and possible recommendations for a season format, based on talks between the league and the NHL Players’ Association. The target date for starting next season remains Jan. 1.

Bettman said the league is considering a few scheduling options for the 2020-21 season. Something that’s off the table: playing the entire season in the kind of bubbles the NHL had in Toronto and Edmonton, Alberta, to complete last season. But Bettman said teams opening in their own arenas is a possibility, along with a modified bubble.

“We are exploring the possibility of playing in our own buildings without fans [or] fans where you can, which is going to be an arena-by-arena issue. But we’re also exploring the possibility of a hub. You’ll come in. You’ll play for 10 to 12 days. You’ll play a bunch of games without traveling. You’ll go back, go home for a week, be with your family. We’ll have our testing protocols and all the other things you need,” he said.

Bettman also indicated that the NHL is exploring “a hybrid, where some teams are in a bubble, some teams play at home and you move in and out.”

The NBA’s board of governors unanimously approved a deal with the players’ union that sets the stage for a season that will open on Dec. 22 and with a reduced schedule of 72 games. Silver said that the commissioners are in communication on COVID-19-related issues, especially the NBA and the NHL, since the two leagues’ teams share arenas and, in some cases, team owners.

Silver said he senses that the NBA will have fans in many of its buildings this season.

“We’re probably going to start one way, where we’re maybe a little bit more conservative than many of the jurisdictions allow,” he said. “What we’ve said to our teams is that we’ll continue to work with public health authorities. Arena issues are different than outdoor stadium issues. There will be certain standards for air filtration and air circulation. There may be a different standard for a suite than there will be for fans spaced in seats.”

Silver said there will be standardized protocols that are consistent from arena to arena, such as proximity between players and fans: “In certain cases, for seats near the floor, we’re going to be putting in testing programs, where fans will certify that they’ve been tested — some within 48 hours, some within day of game.” While Silver supported a continued expansion of the NBA postseason through its play-in tournament, Bettman said that he’s not in favor of expanded playoffs or “playing with the fundamentals of the game.” The NHL had 24 teams in its postseason last summer.

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The Battleground States Where We’ve Seen Some Movement In The Polls

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With apologies to The Raconteurs, the presidential race continues to be “steady as she goes,” with little sign of tightening despite a plethora of new polls. FiveThirtyEight’s presidential forecast gives Joe Biden an 89 in 100 shot at winning the election, while President Trump has just an 11 in 100 chance. This makes Biden the favorite, but still leaves open a narrow path to victory for Trump, for whom a reelection win would be surprising — but not utterly shocking.

At the same time, we also have fewer polls from live-caller surveys, which have historically been more accurate and have shown slightly better numbers for Biden, than polls that use other methodologies, such as polls conducted primarily online or through automated telephone calls. Nevertheless, while the overall picture has shifted only a little in recent days, a few battleground states have seen at least some movement in their polls, which has slightly altered the odds Biden or Trump wins in each of those places.

What election stories need to get more coverage | FiveThirtyEight Politics Podcast

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