The passing of Supreme Court Justice Ruth Bader Ginsburg on Sept. 18 has ignited a political battle less than two months out from the highly anticipated presidential election on Tuesday, Nov. 3.
Just one day after Ginsburg’s death, President Trump vowed to name a woman on Saturday, Sept. 26 to replace Ruth Bader Ginsburg on the United States Supreme Court (SCOTUS). Amy Coney Barrett, a law professor and Seventh Circuit Court of Appeals judge who clerked for the late Justice Antonin Scalia, is widely regarded as the frontrunner for the nomination.
Senate Majority Leader Mitch McConnell declared that President Trump’s nominee “will receive a vote on the floor” despite the impending election. McConnell’s statement—with support from other Republican lawmakers—has been met with fierce opposition from the Democrats.
The Democrats’ go-to attack on McConnell is that he is a hypocrite for refusing to give Merrick Garland, then-President Obama’s Supreme Court nominee, a vote on the Senate floor back in 2016, also an election year.
The important difference between then and now is that in 2016 Republicans controlled the Senate while a Democrat occupied the White House. Now, Republicans control the Senate with a Republican president.
McConnell highlighted this differentiation by citing a tradition dating back to the 1880s, which is that “no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.”
McConnell also justified his refusal to allow a Senate vote on Garland by claiming that the Senate should “allow the people to continue deciding who will nominate the next Justice” by waiting to fill the seat until after the election. In this respect, McConnell is somewhat of a hypocrite because he is now rushing to fill the current vacancy which occurred much closer to the election than in 2016.
However, in fairness to McConnell, “while he certainly used some ‘let the people decide’ rhetoric… at no point did [he] announce a general principle that the Senate should never confirm nominees in these times, even when the majority party wants to,” wrote Robert Verbruggen of National Review.
Now, the roles are reversed in that Democrats are echoing McConnell’s 2016 rhetoric about letting the people decide because it is now politically convenient for them.
Democratic candidate for the presidency Joe Biden took to Twitter to declare this position: “The voters should pick a president, and that President should select a successor to Justice Ginsburg.” That’s not quite how Biden felt back in 2016, though.
During a speech at Georgetown University four years ago when he was Vice President, Biden stated he “would go forward with a confirmation process as chairman, even a few months before a presidential election.”
Justice Ruth Bader Ginsburg herself weighed in at the time of the controversy, asserting that “there’s nothing in the Constitution that says the president stops being the president in his last year.”
As the Constitution provides the president with the authority to nominate a successor, it also provides the Senate with the authority to advise and consent. But as Democratic Senator Chuck Schumer pointed out, “[the Constitution] says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote.”
So while refusing to vote in 2016 makes McConnell a hypocrite, it does not mean he violated constitutional principles in any way. The president can nominate a candidate for the Supreme Court, but that candidate is not entitled to a vote on the Senate floor.
Amy Howe of SCOTUSBlog points out that “the historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.”
Since 1900, there have been five new judges nominated during an election year with the Senate in session. On four of the five occasions, the nominee was confirmed as the same party controlled both the Senate and the presidency.
The only instance in which the nominee was not confirmed was in 2016, when a Democratic president forwarded the nomination to a Republican Senate. This remains in line with the tradition McConnell cited.
Senate Republicans led by Mitch McConnell will have to rush to get the vote on the Senate floor that they desire. But being only 40 days out from the election does not mean confirming a new Supreme Court Justice is impossible.
Although the 14 Supreme Court nominees since 1975 have waited an average of 67 days to be confirmed, there are several judges who have been confirmed in under 45 days.
Ruth Bader Ginsburg herself waited 42 days to be confirmed; Sandra Day O’Connor waited 33; the current Chief Justice John Roberts waited 31; and John Paul Stevens was confirmed in only 19 days.
So yes, it can be done, both constitutionally and logistically. The question is: should it be done, and why?
First of all, there is substantial bipartisan support for filling a seat in the case of a vacancy, according to a Marquette University Law School poll taken just three days before Ginsburg’s death. Overall, 67 percent of respondents favored hearings on any nominee in 2020.
The New York Post confirmed that “the poll did not suggest a strong partisan divide over the issue, with 68 percent of Republicans and 63 percent of Democrats holding that a nomination vote should take place. Independents supported going forward by a 71 percent margin.”
While the remaining 32 percent of voters contend that the results of the upcoming presidential election should determine who fills the vacancy left by Justice Ginsburg, the roles could be reversed if a new justice is confirmed before Nov. 3.
Pew Research polling data from Aug. 13 indicates Supreme Court appointments are the third most important issue for registered voters in the 2020 presidential election. Notably, SCOTUS appointments ranked higher than the coronavirus outbreak, race and ethnic inequality, climate change, and immigration.
This data is especially impressive given that the survey was conducted prior to Ginsburg’s death. That being so, a third Trump nominee could presumably turn the tide of the election one way or another.
The COVID-19 crisis has directly affected the only two issues that ranked above Supreme Court nominees—the economy and healthcare—and the crisis itself completed the top four. But remember—a global pandemic isn’t normally a factor in determining the next president of the United States. Therefore, the Supreme Court issue could provide voters with a sense of political normalcy and galvanize them to vote.
In any case, the Supreme Court by itself is evidently a major issue for voters, global pandemic or not. President Trump’s selection, and the confirmation process that will ensue, should give Americans another issue to base their vote on.
In a time when the public and media alike are so narrowly focused on the health crisis presented by COVID-19 and national protests against racial injustice, the Supreme Court controversy is one that voters desperately need. Independent voters are practically begging for the process to happen, with 71 percent of them calling for a vote to take place.
So let the politics play out right before our eyes. Let the Republicans rush to confirm a new justice at a near-historic pace. Let the Democrats pull out all the stops, possibly including a second impeachment as House Speaker Nancy Pelosi suggested.
In short, the country needs this major issue to be resolved in one way or another in order to better inform the electorate—especially undecided moderates and independents—when it is time to cast our ballots in November.
