Justice Ruth Bader Ginsburg was, to say the least, a trailblazer in the fight for American women’s civil rights. As an attorney, Ginsburg successfully litigated six Supreme Court cases, each focused on gender discrimination in professional environments that she had faced and overcome as a law student at Harvard and Columbia Law Schools and professor at Rutgers and Columbia Law Schools.
Appointed and confirmed in 1993, Ginsburg served the next twenty-seven years of her life on the court until she died from pancreatic cancer on September 18, 2020. With an empty Supreme Court seat, there is a constitutional obligation for President Trump to nominate and the United States Senate to vote regardless of the politically expedient precedent set by Senate Republicans in 2016.
To understand the current circumstances, one must look back to 2016. Then-President Barack Obama nominated Federal Circuit Judge Merrick Garland to fill the seat vacated by late Justice Antonin Scalia, a conservative textualist. A textualist focuses on what they believe the founding fathers understood these amendments to mean during that time period. Merrick follows the style of interpretation called moral reasoning where the justice interrelates the amendments language and its underlying moral sentiments. These styles are about as opposite to each other as the parties which embarrass them. Over the following weeks, Senate Republicans made clear that they were not going to hold a vote to confirm Merrick Garland regardless of the fact they held the majority, which would have allowed them to deny Merrick Garland the seat.
Senate Majority Leader McConnell (R-KY) cited precedent from 1968 where Sen. Strom Thurmond (R-SC) blocked a vote on a Supreme Court nominee. McConnell would go on to block the vote and echo the same sentiment as Thurmond: “It seems clear President Obama made this nomination […] in order to politicize it for purposes of the election. The American people are perfectly capable of having their say on this issue, so let’s give them a voice.” McConnell’s contention has no constitutional basis. Ginsburg even threw her hat into the ring on this issue stating to incoming law students at Georgetown University on Sept. 7, 2016, “The president is elected for four years not three years. So the power he has in year three continues into year four.”
Senate Democrats opposed this proposition. Sen. Elizabeth Warren (D-MA) summed up the Democrats’ argument with this statement, “Filling a Supreme Court vacancy is one of the most solemn tasks undertaken by this government […] it is our job, in the United States Senate, to hold hearings.”
Oh, how the tables have turned.
Now the obvious problem arises—everyone is a hypocrite. Sen. Lindsey Graham (R-SC) even said the words, “Use my words against me” in 2016 and Democratic Presidential Nominee Joe Biden stated on multiple occasions that he believes that the Senate should hold a vote should there be a vacancy in an election year. In an interview in 2017, Biden said, “The constitution says the president shall nominate. […] The Senate will act on its constitutional responsibility of giving its advice and consent. […] They are required to give the nominee a hearing and a vote.” On the night of Ginsburg’s passing he tweeted, “Let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg.”
I contend that the Senate is constitutionally bound to hold a vote. This responsibility is directly outlined in the Constitution, ArtII.SII.CII where it states, “He shall have Power, by and with the Advice and Consent of the Senate […] he shall nominate […] Judges of the Supreme Court.” The Constitution clearly bestows the responsibility of nominating and confirming a justice to the president and the Senate. This confirmation process has been carried out twenty-seven times during an election year. Another argument that President Trump and the Senate should not vote or confirm a new justice because Ginsburg’s granddaughter reported that Ginsburg said, “My most fervent wish is that I will not be replaced until a new president is installed.” This quote is questionable as Ruth Bader Ginsburg, much better than I, knew that there is no constitutional basis to hold a seat vacant because the past justice wished it so.
Many who aren’t invested in politics may find themselves asking why this is such a big deal. I would remind them that there is a high likelihood that the Supreme Court decides who wins the 2020 election. Many states changed from the tried and true process of voting in-person to mass mail out voting creating many problems. One of these includes whether ballots received after the election date should be valid.
Seeing as the question of constitutionality has to be answered before the question of reliability, it will go to the highest court in the land. This would be similar to the 2000 election between Al Gore and George W. Bush where the Supreme Court had to rule on a recount dispute in Florida. In any normal election year with nine justices, this wouldn’t be a problem. If there are only eight justices there is a possibility for a tie in votes. This would create a power vacuum seeing as there would be no recognized President of the United States after January 20, 2021.
Quite simply, no matter what side you’re on, you should be able to recognize that this Supreme Court argument has displayed the “politic” in politician. Even though Senate Republicans blocked a vote in 2016, it would be remiss of both President Trump and the Senate not to go through with the confirmation process knowing that a failure to do so could lead to nation-shattering repercussions.