Should RBG's Supreme Court seat be filled before the election?
- Justice Ruth Bader Ginsburg died on Friday, September 18, from metastatic cancer of the pancreas. During her 27 years in the court, she was a “champion” for women’s rights and gender equality.
- Her death came seven weeks before the 2020 Election in November. Before passing, Justice Ginsburg requested “not to be replaced until a new president is installed.”
- Former President Obama urged consideration for Ginsberg’s dying wish, stating the principle that 'the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.”
- One chief justice and eight associate justices make up a total of nine justices in the US Supreme Court.
- 57 percent of Americans do not support the increase in the number of justices on the court, but 72 percent are in favor of restricting term limits.
RBG's Supreme Court seat should be filled before the election for several reasons. The US is a constitutional republic with a separation of powers that govern the process of how Supreme Court vacancies are filled. The president nominates a candidate, and the Senate Judiciary Committee holds hearings before the full Senate to vote on whether to confirm the candidate or not. This Constitutionally common undertaking of the Supreme Court justice selection process should not be politicized. Rather, confirming a candidate to fill a vacancy on the court should be treated as a non-partisan constitutional function of the Senate (not an opportunity to grandstand or try to gain political leverage).
Moreover, Supreme Court justices are not supposed to be perceived as toeing a political party line since they are a government branch separate from Congress. As Chief Justice John Roberts has said, 'We don't work as Democrats or Republicans.' As a practical matter, the Supreme Court reconvenes on the first Monday in October every year, coming up in two weeks. This means the need to fill RBG's seat is especially keen since until it's filled, there will be an even number of justices, which could result in a deadlocked decision by the court. Lastly, it's unseemly for Senators to use the death of RBG as an opportunity to score political points with constituents by promising to obstruct the constitutional process or by pre-judging the process altogether and declaring their opposition to whomever the president chooses as a candidate to replace RBG. Critical functions of government (like selecting a Supreme Court justice) should not be held hostage to petty party politics.
It is wrong to rush the nomination or approval of a new supreme court justice for several reasons. The most pressing concern for this reasoning is that it is less than two months before a new president's election. This is a position that is only removed by impeachment. The argument could be made that impeachment is possible, but there's only been one impeachment in the entire Supreme Court's history, and the Senate acquitted them. Vetting a new justice is imperative and should be done with more than the time before the election results are announced. For context, in the last one hundred years, a Supreme Court Justice has never been appointed in the last year of a Presidential Administration. It's important to understand how the Senate and Mitch McConnell have dealt with a similar situation with this in mind.
In 2016, former President Obama nominated a successor for a recently deceased Justice. But because of a speech made by Joe Biden in 1992, where he spoke in favor of letting an incoming president decide the new justice, Mitch McConnell cited the same 'Biden rule' as the reason for blocking Barack Obama's Supreme Justice nomination in 2016. Now, however, he intends on allowing Trump make the replacement. This is the type of wavering of morals that position the new Supreme Court Justice toward a nomination that would give the overwhelming majority of Republican representation in future Supreme Court rulings. The Supreme Court shouldn't be a majority of either if it were to truly represent how Americans are reacting to the possible nomination with the majority stating, 'the seat should not be filled until after the election.'