Opinion: Save the court, don’t fill RBG’s seat

Republicans should not overturn the precedent they set during Obama’s years.


Creative Commons: Geoff Livingston

The Supreme Court faces a major change in the next month.

On September 18, 2020, the country lost Ruth Bader Ginsburg to complications of pancreatic cancer. An accomplished jurist, she graduated at the top of her class at Columbia Law School at a time when women were discouraged from working in law. After being appointed to the Court of Appeals for the DC circuit by President Carter, President Bill Clinton appointed her to the Supreme Court in 1993, where she wrote landmark opinions that changed policy and perceptions about the roles of men and women.

She was a liberal icon, known by the nickname “Notorious RBG.” She is survived by her two children, four grandchildren, two step-grandchildren, and a great-granddaughter.

Her death leaves a vacancy on the Supreme Court one that will be filled by the president and confirmed by a majority vote of the senate. President Donald Trump is the president and the Senate, with the likely support of its Republican members, is ready to vote on his nominee.

Yet, in less than 40 days, the United States is having an election, one which may cause a change in the players that currently operate in the White House and the Capitol.  So the big question is: Should President Trump fill the seat before the election?

To learn the answer, let’s look at the Supreme Court and how they’ve functioned in the past.

My most fervent wish is that I will not be replaced until a new president is installed.”

— Ruth Bader Ginsburg

In the legal system, there is a concept called “stare decisis” or standing by what has previously been decided. In short, that means that when they make decisions, the justices look at what decisions came before and generally uphold their rulings, following precedent. There’s no reason why we shouldn’t take that advice. Four years ago, when President Obama tried to fill a vacant SCOTUS seat in an election year, Senate Republicans denied him saying that no seat on the court should be filled during an election year.

In my view, we should follow that precedent, just like the justices do when they uphold precedents, and not fill the seat.

Justice Ginsburg’s “most fervent wish is that [she] will not be replaced until a new president is installed.” The court has dealt with problems with its legitimacy before, but what if the wrong justice is picked? President Trump has selected appeals court judge Amy Coney Barrett, a nominee whose integrity and qualifications are unquestioned.

But before the Senate votes, it must hold hearings on the nominee. These hearings aren’t just a rubber stamp and those hearings aren’t just to debate qualifications: they are the one time before a justice’s life tenure that the American people get a say on the courts and the values that the court upholds or abandons. If we rush these hearings or cancel them altogether, we might put the wrong justice on the court, one that even if they haven’t committed wrongdoing, might have views that are wrong for the country. Rushing this process would denigrate the court and the Constitution.

The argument for filling the seat is that Trump and the Senate’s terms aren’t up and they have a constitutional duty to fill the seat. But so did President Obama. He had almost 10 months before the 2016 election, whereas President Trump has 21 days. There is nothing in the Constitution that says that presidents can’t appoint in an election year but Republicans were afraid that Obama’s nominee, Merrick Garland, was qualified enough to be seated and so invented a precedent– a president can’t appoint a justice in an election year.  But even invented precedents apply to everyone. They don’t change based on which political party is in power. And even if Republicans win this fight, it won’t be the Democrats who will lose.

Standing on the steps of the Supreme Court is an awesome moment filled with dignity and honor. By politicizing this issue, the Court and the Constitution itself will be the biggest losers in this fight. The Senate and the President will make a mockery of the sacred institution that makes decisions for all of us by rushing Judge Barett through the court. Our Constitution requires that everyone in power acts in good faith. Our Senators, Marco Rubio and Rick Scott, will not have acted in good faith when they vote to confirm.

Senators Rubio and Scott: Wait until after the election and for the new senators and president to decide who will replace Ginsburg. Save the vote, save the court and save the Constitution.

  • Rest In Peace, Justice Ginsburg. You will be notorious forever.

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