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Alice Bannon: Brennan Center for Justice believes Ginsburg should not be replaced until after election

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.

Justice Ruth Bader Ginsberg

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.

Alice Bannon directs the Brennan Center’s Fair Courts program. She is managing director of the Democracy Program.

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  1. Marv Dunn says:

    I agree with the writer, we could find ourselves in a full-on crisis in this country. If we already didn’t have enough problems with the pandemic, wildfires and hurricanes, a seriously divided country, election year lies and turmoil etc., Justice RBG passes away. Couldn’t we just give Supreme Court politics a few days break and remember all she accomplished particularly for women. I realize Trump has no empathy for anyone other than himself; but Mitch? The poor woman’s body isn’t cold before these two are gloating about the nomination and confirmation possibilities. It’s going to be a real rough next few months. Trump supporters held a rally at a Virginia polling station yesterday and disrupted voting. Trump has asked his cult to vote twice, he has asked for thousands of lawyers to monitor polling places. Trump could very well be the leader on election night and declare victory despite millions of absentee ballots not counted. Yes, I think we could very well be in for an election crisis which could take years from which to recover.

  2. J Smith says:

    @marv: VP Lyndon B. Johnson was taking the oath of office next to a grieving widow while President Kennedy’s body was laying warm on the plane in Dallas before returning to Washington D.C. The Constitutional requirement to carry on with the business of America is too great to wallow in sorrow for any one of her servants.

    Justice Ginsberg of all people should have understood that her politics and personal wishes fall secondary to the rule of law. She was but one of nine. And there must be nine again according to law in the shortest time feasible.

    It may be that without the possibility of forcing a majority, the country could be in crisis of this election goes to the Supreme Court for arbitration. THERE MUST BE NINE.

  3. Marv Dunn says:

    To J Smith: Your example is like comparing apples to oranges. The Kennedy death/transfer of power was awkward but necessary and I don’t remember any controversy over the event. Historically there is about 70 days between nomination and confirmation. In 2016 Moscow Mitch decided confirmation was never going to happen despite there being over eight months to the next election. Now he has had a change of heart. I’ll take my chances on a eight member court until the next President makes the choice.

  4. ruth bamberger says:

    In a less polarized era, a Democratic Senate approved Pres. Reagan’s appointment of Anthony Kennedy to the Supreme Ct. in election year 1988- 97-0. But we are in a different era thanks to the behavior of Republican party leaders who have succumbed to the far right and will do anything to hang onto power.
    McConnell now leads the pack in the Senate, and is determined to ram a replacement for Ginsburg through
    the Senate before the election- utter hypocrisy on his part since he refused to even hold a hearing on Obama’s nomination to the SC in 2016. Two actions KYians can do to stop McConnell in his tracks: 1) deluge his local office-859-578-0188 with phone calls opposing a SC vote before this election; 2) vote McConnell out of office, so the Senate can regain respectable leadership.

  5. Mike Crawlford says:

    A wish or request are exactly that. Read their definitions. And that would clearly be her wish and request, being that she was an outspoken critic and liberal on what should be a politically neutral court and position without outspokenness.
    A nomination and vote on a new justice is 100% permitted, lawful, and should be done. He is a sitting president with a vacancy. Fill it. There should be no ifs ands or buts about it.. The uproar is simply the fact that liberals know that this will keep the court conservative for the next generation so they want to sabotage it at any cost. Step one: make a huge cry about it via the liberal controlled and liberal backed media that brainwashes so many. Step two: make threats about how they will counteract the nomination. Step three: once the nomination is about to pass a vote in the senate or shortly after, literally start to burn parts of the country down.
    That is the liberal playbook. If they don’t get what they want they literally burn buildings, loot, steal, intimidate people in their homes and on the streets, literally beat people senseless shrouded in the very obvious cover of a social justice movement.
    If they try to somehow burn down the capitol after a lawful vote takes place you will see a very dark cloud descend on the this country.
    Suck it up and let law and order guide this country. Not anarchy and lawlessness when you don’t get what you want.

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