With the health of RBG in the spotlight, the focus is on Judge Barrett

Judge Ruth Bader Ginsburg of the Supreme Court is about to repair a new health alert, but that has not prevented politicians and those at Capitol Hill from laying the groundwork for a unprecedented battle that would ensue if she had to leave office before the 2020 presidential election.

Both parties are preparing for an election fight that could thwart the controversial confirmation last year of Brett Kavanaugh, who was accused of sexual misconduct.

With Kavanaugh in the rear-view mirror and two members named by Trump among the nine-member panel, the Conservatives salivate the prospect of replacing their first judge appointed by the Democrats during the Trump presidency – and the Liberals say the stakes have never been so obvious.

The possible appointment of Amy Coney Barrett, widely considered the next most likely choice of President Donald Trump, adds to anticipation. Barrett, a young conservative Catholic who has been in trouble with Senator Dianne Feinstein of California, was the favorite of social conservatives who believed last year that Kavanaugh was not a sufficiently reliable vote on the subject. ;abortion.

"If it is before election day, it will be a total war." This will give Kavanaugh an air of Triple A [baseball], "told CNBC a GOP strategist knowing the discussions and expressing himself under the guise of anonymity in order to discuss the situation frankly." I think people recognize that it will be brutal and that people recognize that polling day will be close to election day. little room for failure ".

This description echoes what many Washington are preparing for if Ginsburg will withdraw before the 2020 elections. This story is based on interviews with White House advisers, Republican donors, leaders of activist groups, independent congressional courts and counselors.

The Republicans' deliberations took place in the Supreme Court, which announced last Friday that Ginsburg, the 86-year-old's highest-ranking Liberal wing of the court, had completed a three-week radiotherapy for a tumor found on his pancreas.

Republican members of the Judiciary Committee have examined potential candidates, including Barrett, but these lawmakers have wondered privately whether it was worth fighting politically to designate someone too close to or when 39, an election, if there was an opening to the Supreme Court, said aides.

Senate Majority Leader Mitch McConnell said he would fill a vacancy in the court during the 2020 election cycle, accusing him of hypocrisy by the Kentucky Republican's refusal to allow him to vote. the vote on Judge Merrick Garland, President Barack Obama's candidate in 2016.

Ginsburg has already been treated for pancreatic and colon cancers. In December, she was operated on to remove cancerous growths on her lungs. Despite these setbacks, Ginsburg has regularly rebounded and stated that she had no plans to retire any time soon.

The White House, the Senate Judiciary Committee and the Supreme Court have not sent back requests for comment. Ginsburg did not respond to a request for comment submitted to a court spokesperson.

Although any confirmation struggle in the middle of a presidential election is bitter, it should be magnified if Barrett is chosen, because of his background.

Barrett, who sits at the Chicago Federal Court of Appeal since 2017, has been regularly discussed at conservative organizations' meetings during talks about a potential vacancy, according to a senior official. one of the groups who attended the meetings and worked on Kavanaugh's Hearings.

The Judicial Crisis Network, a conservative dark money group that allegedly spent at least $ 10 million to support Kavanaugh, is looking to invest even more in the upcoming conflict with the Supreme Court.

Carrie Severino, the group's chief counsel and chief policy officer, said in a statement that if a position becomes vacant, "we will do whatever is necessary to confirm a constitutionalist".

Progressive groups also say that they have learned from Kavanaugh's appointment and that they are ready to do even more activism if another vacant position arises. While some left-wing members acknowledge that the potential impact of Trump's third potential justice is likely to be less important than the first two, they argue that Kavanaugh's hearings fired activists and drew new attention to the court. , thus reducing the so-called gap of enthusiasm between left and right on the issue.

"I think if you look at the huge activism around the country around Kavanaugh, you'll see that it will be magnified by the next vacancy," said Daniel Goldberg, legal director of the Progressive Legal Group Alliance for Justice and Justice. former senior justice official. . "People know what the issues are and I think you'll see an activism like you've never seen it before."

"Progressives are already focused on the court in a way we have never seen before," said Aaron Belkin, director of Take Back the Court, which advocates an expansion of the court. "Senator McConnell stole the court, then President Trump appointed an alleged rapist in court, and then 2020 candidates began talking for the first time in nearly a century of the court's expansion. conversation unleashed passion. "

"You are already proposing one of the most intense mandates of the Supreme Court on racial and reproductive justice, like DACA, during an election year, and then you add: [a potential vacancy]Sean McElwee, a leftist activist and co-founder of the Data for Progress think-tank, said, "I think our politics are in a kind of spiral of hyper-partisan death in which every political event is intensified."

Some of the lines of battle for a possible Barrett bid were drawn last year, when his name was proposed to replace Judge Anthony Kennedy. In particular, the Liberals focused on Barrett's prolific academic writings, in which she raised questions about the importance of respecting precedents and mentioned the "unborn victims" of abortion.

In an article published in 2013 in the Notre Dame alumni magazine, Barrett is paraphrasing to say that the historic decision on abortion, Roe v. Wade, created "by court a framework of abortion on demand".

Trump finally chose Kavanaugh instead, a Republican figure who irritated some to the religious right for not being conservative enough even as he triggers panic storms to the left.

In an article in the Washington Post titled "Trump chose the wrong judge," David French, of the National Review, wrote in 2018 that Barrett's selection would have created an opportunity for a "cultural moment" in which "young professional Christians … face the worst progressive anti-religious bias and prevail".

For Trump, who said his choices at the Supreme Court were the most important decisions of his presidency, a vacancy would allow him to deliver red meat at his base and refocus the discussion on signs of slowing growth economic and divisional topics brought him into the office.

With Republican control of the Senate and an enthusiastic partner in McConnell, the appointment of a controversial judge to the Supreme Court could also be easier than other promises that the President has strived or n & # 39; There were no outfits, such as the construction of a wall along the US-Mexico border, funded by Mexico.

The Trump campaign and its closest allies believe that a presidential decision to replace Ginsburg because of his health will preoccupy voters on polling day.

"The appointments to the Supreme Court were in the minds of many Trump voters in 2016 and will be in 2020," Trump's campaign communications director Tim Murtaugh said in a statement. "The two stellar picks of President Trump for the High Court, as well as over a hundred other choices for the federal judiciary, are proof of the kind of strong judges that he will select," he said. he added.

"I think you know that Ruth Bader Ginsburg's health will be a topic of discussion for the 2020 elections, but I do not think people go to the polls on election day wondering whether or not Ruth Bader Ginsburg will be alive, "former Trump campaign director Corey Lewandowski said in an interview. Lewandowski considered a race for the Senate seat of New Hampshire.

There will be further fighting in a possible confirmation hearing for Barrett. That 's because, when Kennedy retired, she was a federal judge for less than a year. Since then, Barrett has written dozens of opinions and opinions that provide fertile ground for his supporters and researchers in opposition.

Steve Sanders, a professor of law at Indiana University, who argued in the Supreme Court and was clerk on the seventh circuit, reviewed Barrett's case at CNBC's request.

Sanders said that on the whole, most of Barrett's opinions were rather innocuous; In 49 opinions and several conflicting opinions, Barrett only mentioned abortion once and has not yet written directly on religious freedom. But, he said, he identified a number of cases that activists might seek to highlight.

In a case involving the Second Amendment, for example, Barrett disagreed with two Reagan appointees about a law prohibiting criminals from owning firearms. In a dissenting opinion, Barrett suggested that the law should not apply to persons convicted of non-violent offenses.

In another case, Barrett sided with a Purdue University student suspended after being accused of sexually assaulting a classmate, claiming that he had not benefited from a fair hearing procedure.

In the abortion case, Barrett signed an opposition that favored an Indiana law requiring the interment of fetus remnants. Critics of the law have argued that this would complicate the obtaining of an abortion. The law was finally confirmed by the Supreme Court.

"Many of her decisions are no doubt somewhat conservative, but as most of them simply assert what the lower courts have done, it's hard to say that she's an activist of one." way or another, "Sanders said. "In the case of a judge, there are things that can be done to make them mean, nasty or cold," he said.

The members of the Federalist Society, an influential conservative legal group that has guided the judicial choices of the Republican presidents, are divided over the choice of the best substitute for Ginsburg. Executive Director Leonard Leo played an active role in the Supreme Court nomination process under successive Republican presidents and advised Trump.

Many other judges envisioned by the administration to replace Ginsburg are women, including Allison Eid of the 10th Circuit, Joan Larsen of the 6th Circuit and Britt Grant of the 11th Circuit, according to those familiar with the issue.

Amul Thapar, who has already been introduced by McConnell as an option to occupy the Kennedy seat, and Raymond Kethledge, finalist of the last round of Supreme Court candidates.