WASHINGTON—Several major labor unions are opposing President Donald Trump’s bid to replace the late Supreme Court Justice Ruth Bader Ginsburg before the election, but Senate Republicans appear to have fallen into line to confirm whomever he nominates.
Senate Majority Leader Mitch McConnell, who in 2016 blocked consideration of President Barack Obama’s nominee Judge Merrick Garland on the grounds that no Supreme Court justice should be confirmed in an election year, declared that he would try to push through a replacement for Justice Ginsburg less than 90 minutes after her death was announced Sept. 18.
“No Supreme Court justice should be nominated or confirmed until January 2021,” AFSCME President Lee Saunders said in a statement Sept. 19. “The February 2016 rationale for refusing to consider Merrick Garland’s nomination should apply in September 2020 — to suggest otherwise is rank, shameful hypocrisy.”
Another right-wing justice, he warned, could lead to generations of “unchecked corporate power and widening inequality, with renewed threats to the ability of working people to come together in a strong union.”
Justice Ginsburg “was a consistent, unshakable champion of civil and women’s rights and the freedom to form a union,” AFL-CIO President Richard Trumka stated. “You can rest assured that America’s unions will honor Justice Ginsburg’s memory as we fight for our democracy in the days and weeks to come.”
“We are working on a comprehensive plan with several elements, to ensure that the right justice is picked to replace her,” an AFL-CIO spokesperson told LaborPress.
American Federation of Teachers President Randi Weingarten eulogized Ginsburg’s “unfailing sense of justice” in a message to members, urging them to “call your senators NOW and tell them to honor her wishes” that she not be replaced until after the next President takes office.
The two women considered the most likely nominees to replace Ginsburg have limited judicial records, but have both ruled against labor in cases that came before them.
Judge Amy Coney Barrett, 48, who Trump appointed to the 7th Circuit Court of Appeals in Indiana in 2017, is a favorite of the Christian far-right movement for her opposition to abortion. In 2019, she ruled with the 7th Circuit majority that federal law protecting employees from “disparate impact age discrimination” does not extend those protections to job applicants. The plaintiff was a 58-year-old lawyer who did not get an interview because he had more than seven years of experience.
Judge Barbara Lagoa, 52, was named to the 11th Circuit Court of Appeals in December 2019 after serving less than a year as a Florida Supreme Court justice. On the Florida court, she voted to dismiss the city of Miami Beach’s appeal of a lower-court decision that it did not have the right to set a minimum wage higher than the state’s. As a state appeals-court judge in 2017, she joined in affirming a ruling that Uber drivers were independent contractors not entitled to unemployment benefits.
“We’re just at the beginning of this,” says Adam Shah, senior policy analyst at Jobs With Justice, a coalition of unions and community organizations that supports organizing low-wage workers and legislation for workers’ rights.
Unions have been involved in campaigns around Supreme Court nominations for a couple of decades, he says, as they understand that “the statutes haven’t changed, it’s the interpretation of them that’s changed.” For example, in the 2018 Janus v. AFSCME decision, the Court overturned a 1977 precedent that public-sector workers could not be required to support unions’ political activity, but did have to pay fees for union representation — by holding that government workers bargaining for a raise is inherently political because they’re paid out of public funds.
Jobs With Justice’s strategies will include contacting its local activists to lobby Republican senators in their home states, such as Maine, Colorado, Georgia, and Arizona. The coalition, Shah says, is “making sure how connected the Supreme Court is to democracy. If you lose the Supreme Court, you lose democracy.”
The strategy of lobbying Republican senators, however, might be futile. Democrats need to win over four to gain the 51 votes needed to block a Trump nominee, and two, Susan Collins of Maine and Lisa Murkowski of Alaska, have said they would not confirm anyone before next year. But Mitt Romney of Utah, the only Republican to vote to impeach Trump, announced Sept. 22 that he would be willing to vote on a nominee before the election, saying it was appropriate to have a “center-right” court.
Cory Gardner of Colorado, who is facing a strong Democratic challenger, said Sept. 21 that he would be willing to confirm a justice before the election. Three other Republican senators running for re-election in swing states, Martha McSally of Arizona and Kelly Loffler and David Perdue of Georgia, are all hardcore Trump supporters.
“Mitt Romney does not represent the millions of women in the United States who could lose reproductive rights, or the 14.6 million union workers who could lose bargaining rights,” responds Jobs With Justice spokesperson Nick Voutsinos. “Each of these people deserves a say, which is why we will continue to fight to delay a nominee until after the election no matter what.”
Senate Republicans abolished the filibuster for Supreme Court nominees in 2017, four years after Democrats, frustrated by the GOP’s filibustering more than 60 of President Barack Obama’s appointees, abolished it for lower-court judgeships and administrative posts. That leaves Democrats with few options to stop a confirmation vote: They might conceivably delay one by extreme procedural measures, such as denying unanimous consent for routine business, but that is considered both unlikely and probably futile.
The House could also vote to impeach either Trump or Attorney General William Barr, which would force the Senate to hold a trial. “We have arrows in our quiver that I’m not about to discuss,” Speaker Nancy Pelosi told ABC News on Sept. 20.
Some local unions in New York are concentrating more on turning voters out on Nov. 3. “We’re limited in what we can do” to pressure the Senate, says Jared Trujillo, president of the Association of Legal Aid Attorneys, United Auto Workers Local 2325.
He says the union, which represents more than 2,000 publicly funded lawyers, is putting its efforts into electing state legislators “who care about workers,” fighting in court to protect immigrants’ rights, and lobbying for bills such as eliminating “qualified immunity,” the legal doctrine that shields government officials, including police, from being sued personally for violations of constitutional rights.
“Ruth’s spirit will be with us on Election Day when we vote out a President whose bigotry and hatred stand in opposition to everything that Ruth spent her life fighting for,” SEIU 32BJ President Kyle Bragg said in a statement. “We will work to honor her dying wish that her replacement is made by the next elected President.”
But 32BJ is mostly focused on the election, a spokesperson told LaborPress, “because we have to win.”