The battle to fill the Supreme Court vacancy left by the passing of Justice Ruth Bader Ginsburg

The sudden passing of US Supreme Court Justice Ruth Bader Ginsburg on September 18 has ignited another intense feud over the future of America’s highest court. While there was always the real possibility that 87-year-old Ginsburg might lose her years-long battle with cancer prior to the November 2020 US Presidential Election, the timing of her passing – 46 days out from the election – guarantees another bitter partisan standoff in the US Senate.

Many Democrats seemed certain that Ginsburg would live into 2021, imagining that a Democratic President would then be able to nominate a suitably liberal replacement. Unlike then-candidate Trump in 2016, Joe Biden has so far seemed less eager to make this election a referendum on the Supreme Court. Other than indicating that he would nominate an African American woman, the Biden campaign is yet to publish a list of potential SCOTUS nominees. With Trump set to announce his nominee next week, they will be under increasing pressure to do so in the days ahead.

Senate Republicans are likely to vote to confirm Trump’s nominee in the coming weeks and the predictable partisan cries of hypocrisy have already begun. Democrats argue that Republicans should not be allowed to fill a Supreme Court vacancy before the election because Republican Senate Leader Mitch McConnell refused to do so in 2016 after the death of Justice Antonin Scalia. These arguments are disingenuous.

It is at best misleading to suggest that McConnell ever refused to bring on a vote on Obama nominee Merrick Garland simply because it was an election year. At the time, McConnell and his Republican colleagues were very precise about their reasons for not filling a Supreme Court vacancy in an election year in a situation of divided government. They have also been very transparent about their preparedness to confirm a nominee in 2020.

On 22 February 2016, immediately after Scalia’s passing, McConnell noted that ‘the Senate has not filled a vacancy arising in an election year when there was divided government since 1888.’ When asked in February 2020 about the possibility of a vacancy he stated that, unlike 2016, the Senate was controlled by ‘the same party as the President of the United States. And in that situation we would confirm.’

On this point, history is on McConnell’s side. He is correct that for more than 130 years a pre-election SCOTUS nominee has not been confirmed when the Senate and White House have been controlled by different parties. He is also correct that the Senate, on nine separate occasions, has confirmed the nominee of a President from the same party as the Senate Majority before election day. In fact, sitting Supreme Court Justice Stephen Breyer was confirmed to the First Circuit in the final days of Jimmy Carter’s Presidency – after he lost his re-election bid to Ronald Reagan.

But this will not satisfy Democrats. The Democratic Chairman of the House Judiciary Committee, Jerrold Nadler, has already called for Democrats to ‘pack’ the Supreme Court with new progressive judges should they regain control of the White House and Senate in 2020. Democratic House Speaker Nancy Pelosi has even suggested that Democrats may attempt to impeach President Trump or Attorney-General William Barr in order to stymie any Senate vote on Trump’s nominee. No matter the outcome, it’s clear that another rancorous and protracted DC battle lies ahead.

The passing of any significant public figure is a time for reflection and compassion. The community should be honouring the person that Ruth Bader Ginsburg was and commemorating a woman who, alongside Justice Sandra Day O’Connor, has become an inspiration to girls across the World. All sides should look to her decades-long close personal friendship with conservative Scalia as a much-needed example for today’s divided America. The US’ first thought should not be the political ramifications for contentious issues such as abortion and government mandated health insurance. It’s a sad indictment of the politicisation of the judiciary that, against the intentions of the Founding Father’s, some just can’t seem to help politicising almost every aspect of modern life in the US.

Xavier has written more on this subject for an article in The Spectator Australia, accessible here.