Ginsburg remarked in 2016 that ‘nothing in the Constitution’ precludes 11th hour nomination.
The death of Supreme Court Justice Ruth Bader Ginsburg prompted key Washington figures to change their tune on whether a high-court vacancy should be filled so close to an election – and even the late jurist seems to have reversed herself on the issue.
Ginsburg, whose death was announced Friday, reportedly told her granddaughter Clara Spera, “My most fervent wish is that I will not be replaced until a new president is installed.” That desire jibes with Democrats, including presidential nominee Joe Biden and Senate Minority Leader Chuck Schumer, whose initial statements included both tributes to Ginsburg and warnings to President Trump that the next nominee could only be named by the winner of the November presidential election.
But in 2016, when a lame-duck President Obama tabbed Merrick Garland to replace the late conservative Justice Antonin Scalia, Democratic leaders had no problem with the move. And neither did Ginsburg.
“There’s nothing in the Constitution that says the president stops being the president in his last year,” Ginsburg said in a 2016 New York Times interview in which she called for Garland to receive a confirmation vote in the Senate.
As for whether the Senate should take up a vote on Garland, Ginsburg said at the time, “That’s their job.”
Senate Majority Leader Mitch McConnell, R-Ky., refused to move on Garland’s nomination, leaving the pick to President Trump, when he won the 2016 election. Trump picked Neil Gorsuch, who was then confirmed and provided conservatives a tenuous 5-4 majority on the court.
This time, McConnell says he is ready to call a vote on a nominee from President Trump, despite the looming election.
Trump and McConnell’s insistence on moving to fill the seat left open by Ginsburg’s death has enraged liberals – even prompting threats to “pack” the court with Democratic appointees should Biden win. Although the written rules simply say that, upon the creation of a vacancy, the president must nominate a successor and the Senate must schedule a vote, members of both parties have shown a certain flexibility in interpreting decorum to fit their agenda.
In 1992, then-Sen. Biden pointed to “the overall level of bitterness that sadly infects our political system and this presidential campaign already”, and called on then-President George H.W. Bush to “not name a nominee until after the November election” if a vacancy appeared. It was that so-called “Biden Rule” that McConnell cited when declining to bring Garland’s nomination to a vote.
This time, McConnell maintains that it has been Washington precedent since the 1880s for a Senate of a different party than the president not to consider the nomination of a justice in an election year.
It’s still not clear if Republicans have the votes in the Senate to install a new nominee on the court. Trump on Saturday said Republicans have an “obligation” to fill the vacancy on the Supreme Court left by the death Friday of Justice Ruth Bader Ginsburg “without delay,” but some who previously invoked the “Biden Rule” to argue against a Garland vote, now find themselves in a tough position.
One such lawmaker, Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., told Democrats in 2016 to “use my words against me” if the Supreme Court vacancy should happen during an election year of a Republican president.
He has since signaled he may be ready to change his position.
“I fully understand where President [Trump] is coming from,” Graham tweeted Saturday.
At least two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, have joined Democrats in opposing the idea of a nomination going forward before the election.
In any case, leaving the court with an opening and potentially exposing future cases to 4-4 votes, could portend trouble in the upcoming election. Should issues surrounding contested state votes wind their way up to the nation’s highest court, there may not be a decisive vote.
Ginsburg had an opinion on that back in 2016, too. Speaking before the New York City Bar Association in October of that year, Ginsburg appeared alongside her fellow New York native Justice Sonia Sotomayor and remarked that a divided court with an even number of justices is not an ideal way to move forward even in the short term.
“Eight is not a good number,” Ginsburg said, according to the Washington Post.
Sotomayor then added: “I think we hope there will be nine [justices] as soon as possible.”