Well, everyone saw this coming, but with the election so close and RBG, as she’s known, seemingly invincible, it’s still a shock that the Supreme Court Justice has passed.
But now we have the crazy situation where President Trump can nominate a judge just weeks before an election that he has already described as tainted, which sets up a legal challenge that would end up before that very same judge.
If we get a repeat of the Bush-Gore election of 2000, it could be ugly.
Joshua Douglas, a University of Kentucky law professor, said:
“People’s views of Bush v. Gore would be tame by comparison. It’s almost unimaginable what the reaction would be.”
The question on the table is whether or not Trump should nominate a replacement or let whoever wins the election do that. By law, the sitting president makes a nomination and the Senate takes up confirmation.
In the world of politics, over the course of just four years, both sides now get to be hypocrites.
In 2016, the Senate, led by Mitch McConnell, refused to take up Obama’s nomination of Merrick Garland after Justice Scalia passed, insisting that the next president should be the one to make the nomination. Democrats howled, claiming that the law calls for the process of a presidential nomination and Senate hearing. Now the roles are reversed.
Today, McConnell has changed his tune and said that if the president nominates a justice the Senate will take up the process, while the Democrats are screaming that the process should be put on hold for the next president.
The only thing certain is that none of these people are sticking to a principle.
There’s good reason to move forward with a nomination. If the election is contested and goes before an 8-member Supreme Court, it could end up in a split decision, which would leave the lower court ruling in effect and make at least half the nation view the president as illegitimate, no matter who it is. But there’s also reason to wait. If the nomination is to be made by the person elected to lead the nation, and an election is just days away, wouldn’t it make sense to let the voters put in place the person to make the nomination?
If it were easy, it wouldn’t be a fight.
Roberts ‘Doesn’t Want to Touch This’
If a post-election case winds up before the Supreme Court and Ginsburg’s replacement is not yet in place, Democrats would likely aim to persuade Chief Justice John Roberts, who is seen as the court’s swing vote, to rule in their favor.
“I think just like everybody else in the country, Justice Roberts is really, really hoping the election isn’t close,” said Sylvia Albert, the director of voting and elections at the good government nonprofit Common Cause. “He does not want to touch this with a 10-foot pole.”
Roberts sided with the court’s liberal minority in several key cases earlier this year and has shown a desire to avoid turning the court into a partisan institution.
If he were to join the three remaining liberals, that would create a 4-4 split, which would leave in place any lower court decision but could undermine public confidence in the Supreme Court. Republican Senator Ted Cruz said on Fox News on Friday that Trump needed to replace Ginsburg to forestall the possibility of a deadlocked court and a “constitutional crisis.”
In 2016, Cruz was among Republican senators who refused to let Democratic President Barack Obama fill a court vacancy in an election year, leaving the court with eight members. Trump’s nominee Neil Gorsuch filled that seat the following year.
If a dispute around the 2020 election were to reach the Supreme Court and Ginsburg’s seat had already been filled by a Trump nominee, a ruling by the conservative majority that ensured Trump’s victory would be hard for many Americans to swallow, said Paul Smith, a Georgetown University law professor and vice president at the Campaign Legal Center, a nonprofit voter advocacy group.
“It would be terrible for the country if you have at the same time a president who is viewed as illegitimate by a large percentage of the country and a court that is seen as complicit,” said Smith.
(Reporting by Joseph Ax; Editing by Noeleen Walder and Daniel Wallis)