Justice Ginsburg’s seat must not be filled before Inauguration Day

Justice Ruth Bader Ginsburg by Steve Petteway, Collection of the Supreme Court of the United States
Justice Ruth Bader Ginsburg by Steve Petteway, Collection of the Supreme Court of the United States

Justice Ruth Bader Ginsburg’s death last Friday left a massive void on the United States Supreme Court. President Trump and the United States Senate must wait to fill that void. Although the President and Senate should follow the precedent set by Senate Majority Leader Mitch McConnell and his Republican colleagues in 2016, when they refused to hold a hearing on President Obama’s nomination of Merrick Garland because a presidential election was months away, there are several additional reasons to wait until the winners of the November elections take office in January 2021.

The first is the legitimacy of the Supreme Court itself. As widely reported in the days following Justice Ginsburg’s death, Republican Presidents have appointed five of the current eight justices on the Supreme Court (Roberts, Thomas, Alito, Gorsuch and Kavanaugh), and are poised to make it six out of nine. This is true even though Republican candidates for President have won the popular vote in only one out of the past seven elections. The Supreme Court’s decisions simply have too much impact on government policies and all of our constitutional rights for a minority of voters to exercise such disproportionate control. A few examples:

  • The Affordable Care Act (ACA) will be before the Court again this year, for the third time. A conservative Court majority could strike it down, depriving millions of access to health care in the midst of an unprecedented pandemic.
  • The addition of another justice hostile to Roe v. Wade, which has stood as precedent for nearly 50 years and has consistent majority support among the public, will accelerate the trend of states restricting reproductive freedoms. Overturning Roe, whether openly or by continuing to chip away at the right it recognized, not only means more sweeping restrictions on abortion in conservative states, but also major new federal regulations affecting every woman in America. 
  • Nearly every step forward for freedom, equality, fairness and equity in the lives of tens of millions of Americans over the past 60 years could be in jeopardy. This applies to safeguarding voting rights and maintaining the separation of powers, to advancing racial justice and upholding LGBTQ rights, and to protecting religious liberty and the separation between church and state, among other key constitutional issues. A new, more conservative Court — unrooted in the values and policy preferences of the vast majority of Americans — would do untold damage.

The second reason the Senate must not confirm a nominee to fill the vacancy left by Justice Ginsburg’s passing until after the presidential inauguration on January 20, 2021 is the necessity of a full, fair, thorough vetting.  The rushed, hasty process that the president has proposed is significantly abbreviated compared to the Senate’s conduct in recent decades. Such a process will short-circuit a thorough vetting, inviting a fiasco like that seen during the Kavanaugh nomination. Especially in a time of national turmoil, upheaval and division, our nation cannot afford yet another failed process that strains our democratic traditions.

 

Justice Ginsburg was among the greatest and most influential public servants in American history. She is the first woman ever to lie in state in the U.S. Capitol. The process to name her successor should be dignified, thorough and fair. To replace a paragon of fairness and a symbol of civil discourse through a process in which the Senate majority reverses its own chosen rules out of convenience, opportunism and the exercise of political brute force is unseemly and damaging to the fabric of our democracy.  

The third reason is that this year’s election has already begun. The prospect of a destructive, divisive, deformed confirmation process is particularly distressing at this moment, when the fabric of our democracy is most front and center in our civic life. Voters in many states — Wisconsin included — are already casting ballots. The election of our president and one-third of the U.S. Senate is not in the near future; it is happening right now. To hold rushed hearings and cram through a party-line confirmation vote in the midst of an election is dismissive of voters who are already choosing the next president. That president, whoever it may be, should make this nomination, and the newly constituted Senate should give its advice and consent. 

Rather than rushing with unprecedented speed to fill a Supreme Court vacancy for nakedly partisan purposes, and in doing so violating the very precedent Senate Republican leaders insisted upon in 2016, the Senate must refrain from holding hearings and voting on a Supreme Court justice until January.  Moving forward with the evaluation and approval process now can serve only to diminish and distort the Court’s role as an institution charged with delivering, as engraved over the Court’s front entrance, “Equal Justice Under Law.”

Jeffrey Mandell
Jeff Mandell is a partner at Stafford Rosenbaum LLP, and co-chair of the firm's Election and Political Law group, as well as its Litigation and Appellate groups. Jeff is also the founding President of the American Constitution Society's Madison Lawyer Chapter. He represented the plaintiffs in League of Women Voters of Wisconsin v. Evers, one of the lawsuits challenging the Legislature’s 2018 lame-duck session, and Madison Teachers, Inc. as amicus in Koschkee v. Taylor, which dealt with the Superintendent of Public Instruction’s independent constitutional authority. The views expressed here are his own and don't represent those of his firm or clients.
Douglas Poland
Douglas Poland is a partner at Stafford Rosenbaum LLP in Madison, where he co-chairs the firm’s Election and Political Law practice group. He is on the Board of Directorst of the Madison Lawyer Chapter of the American Constitution Society. He represented plaintiffs in Baldus v. Brennan and Whitford v. Gill, lawsuits challenging Wisconsin’s current legislative redistricting law. The views expressed here are his own and do not represent those of his firm or clients.