As the debate over what to do about the vacancy on the Supreme Court is only getting started, perhaps we should heed the advice of the late Ruth Bader Ginsburg herself as to what to do.
When a similar scenario occurred four years ago, following the death of Antonin Scalia, the Republican-controlled Senate blocked Barack Obama’s nomination of Merrick Garland to the Supreme Court. It was a controversial move, and Ginsburg had something to say about it: Ginsburg publicly called on the Senate to go through with the nomination.
“That’s their job,” she said in July 2016. “There’s nothing in the Constitution that says the President stops being President in his last year.”
“Eight is not a good number for a collegial body that sometimes disagrees,” Ginsburg said on the issue a few months later during an event at the Smithsonian Museum of American History in Washington.
Justice Sonia Sotomayor, who was with her, agreed. “I think we hope there will be nine as quickly as possible.”
“What we do is we automatically affirm the decision of the court below. No opinion is written, no reasons are given, and the affirmance has no precedential value,” Ginsburg explained. “It’s just as though we denied review.”
Sen. Ted Cruz (R-Texas) made the same argument Friday night, though he added that since the 2020 election results are expected to be contested, an eight-member Court poses a potential constitutional crisis.
“Democrats and Joe Biden have made clear they intend to challenge this election. They intend to fight the legitimacy of the election. As you know, Hillary Clinton has told Joe Biden ‘under no circumstances should you concede, you should challenge this election.’ And we cannot have Election Day come and go with a 4-4 Court,” Cruz told Sean Hannity on Friday. “A 4-4 Court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of … a contested election.”
Unfortunately for the Left, their revered Justice Ruth Bader Ginsburg made the case for Trump to nominate, and for the Senate to confirm, her own replacement back in 2016. You can point to the words of politicians who adjust their views to accommodate their desired political ends, and great, there’s plenty of that to go around on both sides, but are the same people mourning the loss of Ruth Bader Ginsburg going to say that she was wrong?