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Analysis

Justice Ginsburg Should Not Be Replaced Until After the Election

GOP senators invented a new standard in order to deny President Obama a Supreme Court appointment in 2016. Now they should abide by it.

September 19, 2020
RBG
Nikki Kahn/The Washington Post via Getty Images

It is less than 50 days until Elec­tion Day. If Senate Major­ity Leader McCon­nell follows through on his pledge that he will consider a nominee by Pres­id­ent Trump to succeed Justice Ruth Bader Gins­burg it will be more than rank hypo­crisy. It will be a full-on crisis for the coun­try, the Supreme Court, and our demo­cracy.

The Court touches virtu­ally every aspect of our lives — from marriage, to health care, to the right to vote. Whoever is appoin­ted to succeed Gins­burg will either cement conser­vat­ive domin­ance on the Court for the next gener­a­tion or play a crit­ical role in coun­ter­ing that trend.

Of course, many will remem­ber that there is a recent preced­ent for the loss of a justice in an elec­tion year. Justice Antonin Scalia died on Febru­ary 13, 2016, open­ing a vacancy on the Supreme Court nearly nine months before the 2016 pres­id­en­tial elec­tion.

Less than an hour after Scali­a’s death had been confirmed, McCon­nell announced that the Senate should not confirm a replace­ment justice until after the 2016 elec­tion. “The Amer­ican people should have a voice in the selec­tion of their next Supreme Court justice,” he declared. When Pres­id­ent Obama nomin­ated Judge Merrick Garland to fill Scali­a’s seat the next month, McCon­nell reit­er­ated, “Let’s let the Amer­ican people decide.”

Other Repub­lican lead­ers echoed McCon­nell. “The Amer­ican people should­n’t be denied a voice,” opined Sen. Chuck Grass­ley (R-IA). Sen. John Cornyn (R-TX) said that “the only way to empower the Amer­ican people and ensure they have a voice is for the next Pres­id­ent to make the nomin­a­tion to fill this vacancy." Sen. Ted Cruz (R-TX) argued, “There is a long tradi­tion that you don’t do this in an elec­tion year. And what this means … is we ought to make the 2016 elec­tion a refer­en­dum on the Supreme Court.”

Many observ­ers, includ­ing at the Bren­nan Center, called out Repub­lican senat­ors for creat­ing a new prin­ciple out of whole cloth. But the fact is that a new prin­ciple was created — one that gave Pres­id­ent Trump an extra vacancy to fill and conser­vat­ives an oppor­tun­ity to main­tain and solid­ify their major­ity on the Supreme Court, with huge rami­fic­a­tions for the coun­try.

In more recent state­ments, McCon­nell has tried to redefine what he did, suggest­ing that the issue in 2016 was that the Senate was controlled by a differ­ent party than the pres­id­ent. But there’s no clear histor­ical preced­ent for any such rule — it has almost never come up in modern history. Forcing through a successor to Gins­burg would be an exer­cise of raw power, plain and simple.

The Supreme Court does­n’t have an army, and it has no power of the purse. Its power comes from the fact that the public accepts its decisions, even when it disagrees with them. The Supreme Court has of course always been a polit­ical insti­tu­tion, but if it’s going to retain its public legit­im­acy it can’t be seen as simply another wing of partisan polit­ics.

Supreme Court nomin­a­tions have become far too politi­cized, but pack­ing the Supreme Court weeks before a pres­id­en­tial elec­tion is differ­ent in kind. It’s not simply another stress test for our insti­tu­tions — there’s a real risk it will break them. That is genu­inely scary — not just for the Supreme Court, but for the basic func­tion­ing of our coun­try and the rule of law.

It does­n’t have to be this way. McCon­nell and other Repub­lican senat­ors should respect the rules they set out four years ago and, as they put it, let the Amer­ican people decide.