September 18, 2020 

Justice Ginsburg's Death Likely to Recast Closing Weeks of the Presidential Race

ema 09/18/20 On Sept. 18, 2020, just 46 days before Election Day, Supreme Court Justice Ruth Bader Ginsburg died at age 87 of complications from metastatic cancer of the pancreas.  At the same time as officials were issuing tributes to Ginsburg's illustrious career, there was also discussion about the timeline for filling the vacancy.  NPR reported, "Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: 'My most fervent wish is that I will not be replaced until a new president is installed.'"

However, President Trump is likely to nominate a conservative justice, who, if confirmed, would tip the conservative balance on the Court to 6 to 3.  In a statement following Ginsburg's death, Senate Majority Leader Mitch McConnell vowed, "President Trump’s nominee will receive a vote on the floor of the United States Senate."  Trump has said he would choose a nominee from a list of candidates he announced less than two weeks ago (+).

In similar circumstances in 2016, the Republican controlled Senate led by McConnell blocked President Obama's nomination of Merrick Garland to the Supreme Court following the death of Justice Antonin Scalia.  That lasted for the better part of a year as Scalia died in mid-February.  At the time McConnell argued that the American people should have a say in the selection of the nominee [VIDEO]. 

McConnell now seeks to draw a distinction between 2016 and the current situation.  The core of his argument is that now the Senate and the White House are controlled by the same party, whereas in 2016 it was different parties.  In his statement, McConnell goes further claiming that, "Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda."  In fact in 2018 the Republican majority in the Senate went from 51R, 47D, 2I to 53R, 45D, 2I largely because Democrats had 24 seats to defend compared to just nine for Republicans (>); at the same time Democrats achieved a net gain of 40 House seats.

Even if the nomination and confirmation process can be accomplished in such a short period of time, a battle over a Supreme Court nomination in the super-charged atmosphere of the closing weeks of a presidential campaign seems like a bad idea, one which can only further poison the already toxic atmosphere in Washington.  The effect on the campaign could be similar to that of the recent wildfires in California and Oregon which darkened skies and created unbreathable air.

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U.S. Senate Majority Leader Mitch McConnell

McConnell Statement on the Passing of Justice Ruth Bader Ginsburg

WASHINGTON, D.C. – U.S. Senate Majority Leader Mitch McConnell made the following statement on the passing of U.S. Supreme Court Justice Ruth Bader Ginsburg:

The Senate and the nation mourn the sudden passing of Justice Ruth Bader Ginsburg and the conclusion of her extraordinary American life.

Justice Ginsburg overcame one personal challenge and professional barrier after another. She climbed from a modest Brooklyn upbringing to a seat on our nation’s highest court and into the pages of American history. Justice Ginsburg was thoroughly dedicated to the legal profession and to her 27 years of service on the Supreme Court. Her intelligence and determination earned her respect and admiration throughout the legal world, and indeed throughout the entire nation, which now grieves alongside her family, friends, and colleagues.

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In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.

President Trump’s nominee will receive a vote on the floor of the United States Senate. Biden for President

Statement by Vice President Joe Biden on the Passing of Supreme Court Justice Ruth Bader Ginsburg

Tonight our nation mourns an American hero, a giant of legal doctrine, and a relentless voice in the pursuit of that highest American ideal: Equal Justice Under Law.

Ruth Bader Ginsburg stood for all of us. She fought for all of us. As a young attorney, she persisted through every challenge that an unequal system placed in her way to change the laws of our land and lead the legal charge to advance equal rights for women. It was my honor to preside over her confirmation hearings, and to strongly support her accession to the Supreme Court. In the decades since, she was consistently and reliably the voice that pierced to the heart of every issue, protected the constitutional rights of every American, and never failed in the fierce and unflinching defense of liberty and freedom. Her opinions, and her dissents, will continue to shape the basis of our law for future generations. May her memory be a blessing to all people who cherish our Constitution and its promise. 

Tonight, and in the coming days, we should be focused on the loss of Justice Ginsburg and her enduring legacy. But just so there is no doubt, let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg. This was the position that the Republican Senate took in 2016, when there were nearly nine months before the election. That is the position the United States Senate must take now, when the election is less than two months away. We are talking about the Constitution and the Supreme Court. That institution should not be subject to politics.