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Why the President not only should, but has an obligation to fill the late Ruth Bader Ginsburg’s seat.
Almost two weeks ago, Justice Ruth Bader Ginsburg passed away in her home due to complications with pancreatic cancer. Not moments after her passing was announced did the partisan bickering begin.
With just over a month before the election, many began questioning whether or not the president has the right to nominate a replacement justice.
Before getting into any of the reasons why President Trump should fill the seat, here’s Section II Article II of the Constitution:
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…”
A further important note to add is that the president serves in office for four years, from Jan. 20 of one year, to Jan. 19 four years later, unless reelected.
This is the bottom line: there is a vacancy on the Supreme Court before the president’s term is over. He has the opportunity — nay, the obligation — to appoint someone to the seat, with the advice and consent of the Senate.
Why wouldn’t he?
The first argument coming from the president’s opponents is that RBG’s last wishes were that she “not be replaced until a new president is installed.” Of course, the obvious and easy response here is that the Constitutional obligations are, unfortunately, not tied to the dying wish of a Justice.
The seat was not hers to fill, it was a seat that she had the honor to fill temporarily.
The second, and probably stronger, argument of those opposed to filling the seat is there is precedent for waiting for the American people to elect a new president, and new congress, before filling the seat.
Senate minority leader Chuck Schumer tweeted less than an hour after the Justice’s death, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
This, of course, was not his own idea, but a direct copy of what current Senate Majority leader Mitch McConnell said regarding former President Obama’s appointment of Merrick Garland to fill the election-year vacancy of Justice Antonin Scalia.
This, for both leaders, was purely political and has nothing to do with Congressional mandates, but Congressional “norms,” or polite conduct.
Twenty-nine times in American history there has been a Supreme Court vacancy in a presidential election year, or in a lame-duck session, and in every one of those instances the president has made a nomination. This includes presidents from Washington to Obama.
Of these twenty-nine, nineteen of these times have been in a year when the Presidency and Senate were controlled by the same party. Of those nineteen, seventeen were confirmed before the reelection, and nine before the election even happened.
This is what makes Merrick Garland’s appointment process irrelevant to today. The Senate holds the power to both advise and confirm any appointment. The Republican-led Senate of 2016 allowed the sitting president to nominate an appointee. They just were not going to vote because they were not going to confirm.
This was a massively partisan move, but that being said, is anyone shocked that a Republican Senate wanted to wait for the chance to confirm a conservative justice rather than appointing one from the opposing party?
The third argument is a subset to the second in that the Senate does not successfully represent the populous; 47 Democratic senators represent almost 169 million people, while 53 Republican senators represent about 158 million.
This point is simply inconsistent with the will of the founders. They knew they wanted this power to be vested in the branch with equal representation, not proportional. They deliberately vested this power to the less responsive arm of the legislature.
So what would happen if the president did nominate someone?
Well, in response to the possible filling of the seat, Democrats have launched an attack on the institutions themselves. They have expressed a desire to eliminate the filibuster entirely to expand the court, something former Vice President Joe Biden has remained hesitant to support.
Representative Alexandria Ocasio-Cortez said on the matter, “If Republicans want to move forward…. Then we should leave all options on the table.”
While attacking the Republicans for “breaking norms,” Democrats are threatening to expand the Supreme Court and end the filibuster, which they used this month, against a COVID-19 bill.
Let us remember that because our party is not in control does not mean we should destroy the system. Power changes; that is part of democracy.
In 2013, then Senate Majority leader Harry Reid pushed through Congress a change to Senate rules; he ensured that to end a filibuster they needed 51, not 60, votes. This, of course, made it easier for President Obama to appoint judges, and the same remained true for President Trump.
We do not respond to losing a battle by changing the nature of the game. If the roles were reversed, any Democrat president would have the right to nominate someone to the high court and have their Democrat Senate confirm the nomination — and let me be clear, they would absolutely push through a nominee, and rightly so.
This is not “ramming.” This is not “breaking norms.” This is a conservative president and senate wanting a conservative judge. We should not be shocked, appalled or confused.
The Constitution makes this clear. The president does not need to stop fulfilling his Congressional obligations just because some disagree with their politics. Fill the seat, Mr. President.