Turmoil in Congress is on the rise again following the death of Supreme Court Justice Ruth Bader Ginsburg.
Appointed to the Supreme Court in 1993 by former President Bill Clinton, Ginsburg served for a total of 27 years. As just the second woman appointed to the court and an avid advocate for gender equality, Ginsburg will depart from the living as a historic Supreme Court Justice.
The Supreme Court has a total of nine justices who are selected by the president, approved by the Senate and serve for as long as they wish; they can only be removed by impeachment. Therefore, after a Supreme Court Justice passes or resigns a new Justice is appointed.
The process is normally simple. The president’s pick is sent to the Senate where they need a simple majority to be confirmed. A simple majority is more than half, meaning only 51 members of the Senate would have to approve for the nominee to be appointed.
A Difficult Challenge During Election Year
However, replacing Ginsburg proves to be more challenging than past appointments.
Constitutionally, the appointment of a new Supreme Court Justice can take place as soon as the president’s pick is confirmed by a simple majority in the Senate. Yet, filling the vacancy swiftly hasn’t always been the case. In fact, the longest a seat has been vacant was for 841 days following the death of former Supreme Court Justice Henry Baldwin in 1844.
On Saturday, President Trump told his North Carolina campaign rally he plans to appoint a woman to the Supreme Court next week.
“It will be a woman, a very talented, a very brilliant woman,” said President Trump. “Whom I haven’t chosen yet but we have numerous women on the list.”
Currently, Trump’s tops picks are Judge Amy Coney Barrett and Judge Barbara Lagoa.
He also urged the Republican Senators to act, “without delay,” in approving his choice to fill the vacancy. This is due to growing unrest in Congress about appointing a new justice during an election year.
.@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!
— Donald J. Trump (@realDonaldTrump) September 19, 2020
During the 2016 election cycle, following the death of former Supreme Court Justice Antonin Scalia, President Obama quickly suggested his choice, Merrick Garland, for the vacant seat. However, Senate Majority Leader Mitch McConnell claimed that the task of selecting a new Justice should go to the candidate who will win the election later that year.
“The American people should have a say in the court’s direction. It is a president’s constitutional right to nominate a Supreme Court Justice, and it is the Senate’s constitutional right to act as a check on the president and withhold its consent,” said McConnell.
The eight-month prolonging of the appointment was successful as the Court had to convene with only eight members until President Trump appointed Neil Gorsuch in January of 2017. Democrats, being the minority of the Senate at the time, could do nothing to restart the process after McConnell put a pin in it.
McConnell stated at a Kentucky rally later that year that it was one of his proudest moments.
“One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy’,” McConnell said.
Democrats are requesting the same precedent set by McConnell in 2016. However, McConnell has since changed his position.
UT Political Science Professor, Troy Goodale, expressed his concern about McConnell’s change of stance.
“Majority Leader McConnell and numerous Republican Senators are on record from 2016 saying that the American people should decide who the president will be, and that president should get to nominate the next Associate Justice. If now these same Senators go back on their word, this will further divide Americans and undermine the legitimacy of our Constitutional process,” said Goodale
Packing the Court
Some Democrats have suggested “packing the court” if the seat goes up to a vote in 2020.
If he holds a vote in 2020, we pack the court in 2021.
It’s that simple.
— Rep. Joe Kennedy III (@RepJoeKennedy) September 19, 2020
Introduced in the 1930s by former President Franklin D. Roosevelt, packing the court is the notion of adding more Justices to the Supreme Court. Goodale stated that packing the court in 2021 would be, “nothing new.”
“Adding or reducing the number of Supreme Court positions is Constitutional and the prerogative of the United States Congress,” Goodale said. “It’s been done for partisan political purposes in the past, so doing it in 2021 or whatever would be nothing new.”
Expressing concerns over the possible dangers of court-packing is UT Department of Political Science Lecturer Nikki Mitchell.
“The danger is in the potential snowball effect if ‘court-packing’ occurs. Theoretically, if Biden becomes the president and two liberal justices are added to the court, would the next Republican government seek to expand the court two more seats,” said Mitchell. “Would it become a tit-for-tat, bloating the institution and reducing it to a game?”
Despite Republicans having the majority in the Senate, there are still some wildcards that might throw a wrench in Trump and McConnell’s plans to fill Ginsburg’s seat. Also changing his mind from 2016 to now is Sen. Chuck Grassley. Against the Republican decision to delay the vote in 2016, Grassley is now siding with Republicans on filling the seat under President Trump’s administration.
With a divided govt in 2016 there was ambiguity about what the American ppl wanted for the direction of the Supreme Court/ voters expanded republican majority in 2018 election after 2 Trump scotus confirmations There’s no ambiguity now w Republican Senate & president
— ChuckGrassley (@ChuckGrassley) September 21, 2020
Sen. Mitt Romney was also considered a wildcard considering he voted against acquittal for President Trump in the Impeachment Trials earlier this year. However, he recently stated that he will participate in the vote on President Trump’s Justice nominee.
“If the nominee reaches the Senate floor, I intend to vote based upon their qualifications,” said Romney.
Presidential nominee and former Vice President Joe Biden is in favor of delaying filling the seat until after the Presidential Election. He even appealed to Republican Senators in an attempt to convince them to delay.
“We need to de-escalate, not escalate. That’s why I appeal to those few Senate Republicans, the handful who really will decide what happens. Please follow your conscience. Don’t vote to confirm anyone nominated under the circumstances President Trump and Senator McConnell have created,” said Biden.
Ginsburg herself also had a stance on the subject. On her deathbed, she told her granddaughter that she wished they would delay the appointment.
“My most fervent wish is that I will not be replaced until a new president is installed,” said Ginsburg.
Speaker of the House Nancy Pelosi also weighed in on why she believes President Trump and McConnell are racing to fill the seat.
“The President is rushing to make some kind of a decision because he [knows], November 10 is when the oral arguments begin on the Affordable Care Act. He doesn’t want to crush the virus. He wants to crush the Affordable Care Act,” said Pelosi.
If confirmed by the Senate, President Trump’s pick to fill the vacant seat will likely swing the Court to the right. This has Democrats on edge because it means more conservative based decisions will emerge from Supreme Court Cases.
At this point, the decision is in the hands of the Republican Senators, but only if they can make a decision before ⅓ of Senate seats go up for re-election in November.
If they cannot achieve this before then, Republicans might lose the majority in the Senate. Delaying the appointment then would be the most likely outcome.
Edited by Donna Mitchell and Maddie Torres
Featured Photo Courtesy of Creative Commons