Nation Mourns the Passing of The Honorable Ruth Bader Ginsburg >>

September 23rd, 2020

Nation Mourns the Passing of The Honorable Ruth Bader Ginsburg

Last Friday evening, Supreme Court Justice Ruth Bader Ginsburg passed away at the age of 87. She was at home surrounded by family after battling a resurgence of pancreatic cancer.

Ginsberg’s casket arrived at the U.S. Supreme Court this morning and she will lie in repose at the Court today and tomorrow. Then, as the first woman to do so, she will lie in repose at the U.S. Capitol this Friday. Since news of her passing, thousands of people have gone to the Court grounds to pay their respects and to leave flowers, cards, and other remembrances to express their gratitude for her service, perseverance, grit, and commitment to equality for all.

Nominated by President Bill Clinton in 1993, Ginsburg was the second woman to sit on the Supreme Court. She attended Cornell University and Harvard and Columbia Law Schools. After law school, she became a professor at Rutgers and then at Columbia, as the law school’s first female tenured professor. She became the director of the ACLU’s Women’s Rights Project where she argued six gender discrimination cases before the Supreme Court, winning five, and persuading the bench that gender discrimination is a violation of the Constitution’s equal protection clause.

In 1980, Ginsberg was appointed to the U.S. Court of Appeals for the District of Columbia, the second most powerful federal court. She was confirmed to the U.S. Supreme Court in 1993 where she was a consistent moderate liberal. She took on the role of senior liberal justice after 2010, which became increasingly important as the balance of opinion shifted on the Court. Her scathing dissents on conservative majority decisions, particularly on women’s rights, made her a celebrated figure on the left.

Nomination & Confirmation Process to fill Court Vacancy

Two hours after the Ginsburg family announced her passing, Senate Majority Leader Mitch McConnell put out a statement that “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

Article II section 2 of the Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court…” The process begins with the President officially nominating a candidate, and that nomination is sent to the Senate Judiciary Committee (Committee) for consideration. In the past, the Committee has always held hearings and requested relevant documents and information on judicial nominees. The Committee will vote on the nomination and send its recommendation to the full Senate. The full Senate then debates the nomination. The Senate rules previously allowed unlimited debate (a practice known as filibustering) and to end debate, it required the votes of 3/5 of the Senate or 60 senators (known as the cloture vote). In April 2017, the Senate changed this rule and lowered the required votes to 51 to end debate on Supreme Court nominations (this is commonly known as “the nuclear option”). After debate ends, the Senate will vote on the nomination, and the nominee is confirmed by a simple majority of “yes” votes. If there is a tie, the Vice President casts the deciding vote.

In 2016, after the death of Justice Antonin Scalia, President Obama quickly named Judge Merrick Garland to fill the seat. Widely regarded as a moderate, Garland had been praised in the past by many Republicans. Even before Obama had named Garland and, in fact, only hours after Scalia’s death was announced, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president — to be elected 11 months later. The Senate did not consider Garland and when Trump won the election, he quickly nominated Neil Gorsuch to the vacant seat.

Numerous Republicans during the Garland nomination process spoke out in support of holding open the seat due to the impending election. This time, those same Republicans are saying the seat should be filled immediately, despite a mere 41 days until Election Day.

McConnell has stated he will move quickly and fill the seat before Election Day, but that strategy could result in several vulnerable Republican Senators losing their seats come November. On the other hand, it could also motivate conservative voters who might be feeling apathetic about Trump. Senate Judiciary Committee Chairman Lindsay Graham (R-SC), who is up for re-election and facing a tough challenge from Jaime Harrison, stated yesterday that Senate Republicans have at least 51 votes to confirm whoever Trump nominates for the Supreme Court vacancy created by the passing of Ginsburg. Trump indicated he will announce his nomination for this vacancy this Saturday.

Democratic Senators are being vocal about the hypocrisy in McConnell’s statements and decision to move forward. The Senate structure, however, gives the minority very few tools to block the nomination, especially since the 2017 rule changes.

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