The vacancy created by the death of Justice Ruth Bader Ginsburg six weeks before the presidential election could allow Donald Trump to shape the Supreme Court to his will, or that of his base, for decades.
The nomination of a replacement justice is governed by rather simple constitutional principles. First, the president has the right to nominate Ginsburg’s replacement to the court, and second, the United States Senate needs to approve the nomination.
So while the late justice can be legally replaced weeks before an election that will see Republicans lose or retain the presidency, doing so is not a good idea. Yes, if the Senate allows the president to replace Ginsburg with his nominee, he and it will have reshaped the court by replacing a liberal justice with a conservative one. But the effect of this effort may not last long and will not be without exacerbating what has become the regretful and highly divisive nature of American politics.
Already there is discussion about increasing the number of justices on the Supreme Court in response to a Senate confirmation of Trump’s nominee if the Democrats win in November. Many think this is a bad idea, this board among them, although the threat is not without precedent; FDR threatened to increase the Court to 13 justices when his New Deal legislation was consistently struck down by the Supreme Court of the 1930s.
This board calls upon the U.S. Senate to not vote on the nomination before the election or after the election if Trump does not win a second term. If he is victorious, he has every legal and equitable right to replace Ginsburg with a nominee of his choice, assuming the Senate consents. If he does not, he has lost the equitable right to do so and the Senate should take control of the process by refusing to vote.
To maintain any semblance of respect for the institution, the Senate must be entirely consistent in its approach to approving “lame duck” nominations to the Court.
Senate Majority Leader Mitch McConnell said the following when Merrick Garland was nominated, 11 months before Obama’s term ended: “This nomination should not be filled, this vacancy should not be filled by this lame duck president. The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”
Editorial Advisory Board members James K. Archibald, Arthur F. Fergenson, Nancy Forster, Michael Hayes, Leigh Goodmark, Stephen Z. Meehan and Debra G. Schubert did not participate in this opinion.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Arthur F. Fergenson
Julie C. Janofsky
Ericka N. King
Stephen Z. Meehan
C. William Michaels
Angela W. Russell
Debra G. Schubert
H. Mark Stichel
Vanessa Vescio (on leave)
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.