Perhaps there are serious arguments for why President Trump and the U.S. Senate should not exercise their legal authority to nominate and confirm a justice to the Supreme Court in the months before the 2020 election.
Violating Justice Ruth Bader Ginsburg’s alleged dying wish is not one of them.
Before her death, the late Supreme Court justice allegedly dictated the following statement to her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed.”
“Fervent” or not, the seat is not hers to give. Members of the court, past or present, do not get a say in the confirmation process. The president has the legal authority to nominate at any time a candidate to a vacancy on the court. The Senate has the authority to give its advice and consent. There is no law that says neither should exercise their constitutional authorities during an election year. In fact, history and precedent say otherwise. Since 1795, nine justices have been nominated and confirmed to the court during a presidential election year, where the same party controlled the executive branch and the Senate. Whether Ginsburg would have wanted it another way for 2020 is irrelevant. That is not how this works.
If there is a legal argument for why Trump and Senate Majority Leader Mitch McConnell of Kentucky should not fill the vacancy before Election Day, make that argument. If there is a moral argument, make that argument. But don’t fall back on hackneyed, manipulative appeals to emotion. In other words, don’t be like Democratic Rep. Alexandria Ocasio-Cortez of New York. Don’t be like independent Sen. Bernie Sanders of Vermont. Make your case without the “dying wish” tearjerker argle-bargle.
“The very last dying wish of RBG was that her vacancy not be filled until the new president takes office in January. That was her dying wish,” said Ocasio-Cortez.
The congresswoman added, “Mitch McConnell publicly, the night of her passing, he couldn’t wait 24 hours, issued a statement saying that he was going to give Trump a vote in violation of her dying wish. People can say, ‘How appalling,’ people could say, ‘This is horrible,’ et cetera, but we know who this man is. We know who this man is. This is a man who does not care about a dying woman’s final wish, clearly.”
“Unfortunately, Sen. McConnell has decided to go against Justice Ginsburg’s dying wishes and is cementing a shameful legacy of brazen hypocrisy,” said Sanders on Sept. 18. “The right thing to do here is clear, and Senate Republicans know it. We should let voters decide. Period.”
When it comes to the confirmation of Supreme Court justices, there is no “dying wish” clause in the Constitution. This is the highest court in the United States, after all. Not the Make-a-Wish Foundation.
And as for election-year Supreme Court vacancies, Ginsburg herself had some thoughts on the matter.
In 2016, the late justice was asked if the Senate had a responsibility to assess Judge Merrick Garland’s qualifications to sit on the court. She answered immediately in the affirmative.
“That’s their job,” Ginsburg said. “There’s nothing in the Constitution that says the president stops being president in his last year.”
Asked elsewhere if an election-year vacancy should be filled by the winning candidate, Ginsburg balked.
“The president is elected for four years not three years, so the power he has in year three continues into year four,” she said. “Maybe members of the Senate will wake up and appreciate that that’s how it should be.”
