On Friday, our nation lost a historic Supreme Court Justice: Ruth Bader Ginsburg. She was a brilliant justice, a legendary advocate, a careful lawyer, and, as only the second woman to ever serve on the Supreme Court, a trailblazer. She led an extraordinary life that shaped the lives of others and she leaves behind her an extraordinary legacy.
Much like the news in 2016 of the great Supreme Court Justice Antonin Scalia’s passing during an election year, Friday’s news was instantaneously followed by the question of when to fill the vacancy that now stands on the Court.
Here’s why President Trump must nominate a successor next week and why the Senate must confirm that successor before Election Day:
First, this nomination is why the American people elected Donald Trump as president and this confirmation is why the American people voted for a Republican majority in the U.S. Senate.
The Supreme Court has become the preeminent arbiter of our constitutional rights. And the type of justice that serves has a profound impact on public policy and our fundamental liberties.
Unfortunately, over the past six decades, the Court has arrogated to itself far too much power—well beyond what it is entitled to under the Constitution. It has seized this power at the expense of Congress, the executive branch, the states, and We the People alike.
The 2016 election was not only a referendum on our Supreme Court; it was a referendum on the direction of our entire judicial system.
The American people had the option between a faithful originalist vision of the Constitution and a progressive liberal activist vision, and they rightly chose faithful originalism.
Despite the best efforts of Senate Democrats to delay the confirmation of President Trump’s well-qualified Supreme Court nominees and all 216 of his nominees we've confirmed to the federal bench, Republicans have answered this important call from the American people and we should not stop now.
Second, twenty-nine times in our nation’s history we’ve seen a Supreme Court vacancy in an election year or before an inauguration and in every instance, the president proceeded with a nomination.
Nine presidents, including George Washington, Woodrow Wilson, William Taft, and Herbert Hoover, faced with whether to fill a Supreme Court vacancy in an election year, did so before Election Day when their party held the majority in the Senate.
And on nineteen different occasions up to 1968, the president sought to fill a Supreme Court vacancy while his own party controlled the Senate. Nine out of the ten nominations made before Election Day were successfully confirmed, while eight out of the nine nominations made after Election Day were also successfully confirmed.
Three presidents, who had already lost the presidential election, have filled lame-duck Supreme Court vacancies.
When this issue arose in 1992, then-Senator Joe Biden made clear the Senate had the right to proceed. He noted, however, that the Senate should ensure the process is ‘fair’ to the nominee. I believe this Senate can meet the standard of fairness.
More recently, when faced with this question in 2016, there was a divided government. When the presidency and the majority of the Senate are held by different parties in an election year, the Senate historically has not confirmed the president’s nominee. Senate Republicans stayed the course in 2016.
But that is not the case today. The presidency and the majority of the Senate are held by the same party. And just like in 2016, when Republicans held firm against filling a vacancy based on precedent, we should not break from precedent now.
And finally, as we approach what is likely to be a contested election that hangs in the balance of the Supreme Court, our nation is at risk of a constitutional crisis without nine justices on the bench.
Twenty years ago, I was part of the legal team that litigated Bush v. Gore and went to the Supreme Court.
For thirty-six days, the country did not know who the president was going to be, and if we had had a four-four court it could have dragged on for weeks and months. In the midst of deadly pandemic, economic devastation, and violent riots erupting across the country, that is the last thing the American people need.
As I wrote in my forthcoming book, "One Vote Away—How a Single Supreme Court Seat Can Change History," every single vote on the Court matters in every major case the Court hears.
There is no room for error. On too many issues, we are one vote away.
This could very well be the case come November, and we need to do everything we can in the Senate to be ready for that possibility.
Earlier this month, President Trump put forward a list of extremely qualified, principled constitutionalists who could serve on the Supreme Court, and he is expected to formally nominate one of those candidates as soon as next week.
When he does, the Senate has a constitutional responsibility to advise and consent. We also have an electoral responsibility to uphold the will of the American people. We must deliver on both, and we must deliver without delay. The stakes have never been higher.