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Say what you will about her political leanings: Ruth Bader Ginsburg was tough, and she fought for equality. Her presence in the Supreme Court will be missed, and not just by Democrats. Republicans respected RBG’s spirit and resolve. That she battled through cancer to stay on the bench was inspiring, and there’s nothing to be gained by trying to diminish that accomplishment.
That being said, President Donald Trump hasn’t hesitated in moving ahead with the nomination of another justice. He is likely to nominate Amy Coney Barrett, a federal appellate court judge who has been vocally opposed to Roe v. Wade. Some have raised questions about the fairness of this potential nomination, given the Garland precedent, however.
In 2016, after Antonin Scalia passed away, Barrack Obama nominated Merrick Garland to take his place on the bench. However, Senate Majority Leader Mitch McConnell refused to hold a Senate hearing on Garland. McConnell cited what he claimed was Senate procedure to not confirm a Supreme Court Justice during an election year. So, Garland was effectively blocked from a Supreme Court confirmation.
This has had huge ramifications. Donald Trump nominated Neil Gorsuch to the court, and then, following Anthony Kennedy’s retirement, Trump nominated Brett Kavanaugh. Both were confirmed, though Kavanaugh’s confirmation was not without controversy. However, this has resulted in Republicans commanding a majority on the court, which Ginsburg’s death threatens to extend to 6-3.
It should come as no surprise that Mitch McConnell isn’t planning on waiting until after the election to hear Trump’s nomination. McConnell will likely hasten to confirm any conservative that Trump appoints. After all, the election is almost a month away, and polls aren’t favoring the incumbent. How are things different in 2020 than in 2016, though?
McConnell may have seemed to have painted himself into a corner, logically. If the Garland Precedent is followed, shouldn’t Republicans wait until after the election to nominate a new justice? Well, not exactly. Trump’s first term may be ending, but he could easily serve a second term in the White House. As such, the lame duck argument from 2016 isn’t as strong this year.
Moreover, McConnell is in the enviable position of power. He has the votes and he has the position. Why shouldn’t he get to confirm the president’s pick for Supreme Court Justice? When you’re in a favorable position, politically, you should press the advantage.
