U.S. Supreme Court Justice Ruth Bader Ginsburg speaks on the Main Stage of the National Book Festival, August 31, 2019. Photo by Shawn Miller/Library of Congress

When I first learned of Ruth Bader Ginsburg’s passing, I thought and prayed for her family and colleagues who are mourning. I reflected upon eternity as I always do when someone dies. What I did not want to do was consider the political ramifications of her death. 

Frankly, the last thing 2020 needed was a Supreme Court vacancy in a presidential election year that is already extremely contentious. Yet, here we are.

I would love to see an originalist jurist replace Justice Ginsburg; I think there are many good names on President Donald Trump’s list (including the additions he released earlier this month.)

I understand the political reasons and temptation to go forward with a nominee and confirmation process that would swing the court to a 6 to 3 Republican-appointed majority. I get it. It could be a missed opportunity.

I also understand President Trump has the constitutional authority and right to appoint a nominee just as President Obama did after Justice Antonin Scalia died. The Senate also has the constitutional authority to confirm an appointment. This is not a question of what is constitutional. 

I also understand the arguments that President Trump is not in his last term, he’s not yet a lame duck, and President Obama was. I understand Senate Majority Leader Mitch McConnell’s “Biden rule” argument

I believe that pushing a Supreme Court nominee through the confirmation process before the election will turn a dumpster fire election into something much worse.

Turn the temperature down, put aside conventional political wisdom, and let voters decide. Take the high road. If President Trump wins and Republicans hold the Senate, then here comes that 6-3 majority. If he doesn’t win, then we’re looking at, for the most part, status quo. 

Now, had Senate Republicans not waited and confirmed Merrick Garland in 2016, my opinion would be much different. Regardless of how McConnell spins confirming a nominee now, it will look like hypocrisy. It could also cost them the election.

The worst scenario should President Trump and Senate Republicans push through a nominee and then lose in 2020, then I think court-packing becomes inevitable.

It is unfortunate the Supreme Court has become so important. It was never meant to have the power to shape our lives in the way that it does. Congress has failed to properly legislate, leaving far too much up to the executive and judicial branches. 

But here we are. 

Instead, both presidential candidates should present their vision for judicial nominations. President Trump has shared his list. I agree with U.S. Senator Chuck Grassley, R-Iowa, who called on former Vice President Joe Biden to share his list of potential jurists. He should, Americans have a right to know. 

Campaign on it and then let Americans decide.

If Vice President Biden wins, then Americans have spoken. If President Trump and Senate Republicans win, they can move forward with a nominee and a fresh mandate. If we have an opposing President and Senate, they can fight it out in 2021.

And perhaps the temperature will be lowered slightly as we move toward November.

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  1. As a practical matter, I do not expect a vote on a Supreme Court nominee before the election. Senators Murkowski and Collins have indicated they will not vote to fill the position before the election. Romney’s vote is also in doubt. Regardless of the outcome of the election, however, President Trump should nominate and the Senate confirm a Supreme Court justice prior to Inauguration Day.

    I am always amazed about the “waiting until Americans have spoken” argument.

    President Obama wasn’t deterred by this argument when he nominated Merrick Garland to the court. I, and other Americans, did speak in 2016. Supreme Court nominations were a major reason for our vote. We did not say the president should fail to exercise his powers to fulfill his promises and save our country from a leftist judiciary once election campaigns started. We elected him for his full term of office, i.e. to January 20, 2021. not to November 3, 2020.

    And let us remember, the “Biden Rule”, which Joe Biden has apparently forgotten, along with many other things, provided that when the Senate and the Presidency were controlled by different parties, there should be no Supreme Court appointments once the election season has started. This is the rule Mitch McConnell followed with respect to Merrick Garland. Well, the Senate and the Presidency are controlled by the same party, so the rule does not apply.

    If President Trump cannot get a nominee through the Senate, he should make a recess appointment to the court which, as I understand it, could last up to two years. Even that would be a tremendous service to our country.

  2. Not dissenting from your position, but Ted Cruz has offered another consideration: The strong possibility of a contested presidential election, ALA 2000, makes it almost imperative that the Court be up to full strength to resolve an impasse. However, I agree with the previous comment that a vote on a nomination is unlikely even before Jan 21, 2021.

    1. Something to consider, while the threat of lawsuits wasn’t nearly as high in 2016, the possibility of a tie vote existed then as well (and when Senate Republicans took this course of action back in February of 2016, they had no idea whether or not the presidential election was going to be contentious).

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