Senate Democrats: Supreme Court Vacancy Shouldn’t be Filled Until After Election

Updated: 2020-09-19 08:03:09

The Senate shouldn’t consider a replacement for Justice Ruth Bader Ginsburg until 2021, after the presidential inauguration, top Democrats in the body said Friday.

Ginsburg, 87, died from pancreas cancer complications earlier in the day.

Sen. Dianne Feinstein (D-Calif.), the ranking member on the Senate Judiciary Committee, was among the Democrats quickly calling on Senate Majority Leader Mitch McConnell (R-Ky.) and other colleagues not to try to fill the new vacancy until after the election.

“Under no circumstances should the Senate consider a replacement for Justice Ginsburg until after the presidential inauguration. Senator McConnell made his position clear in 2016 when he held Justice Scalia’s seat vacant for 10 months so he could deny President [Barack] Obama an appointment—a goal he himself admitted,” Feinstein said in a statement

The committee vets and approves of judicial nominees before the full Senate votes on them.

McConnell blocked the nomination of Merrick Garland to the vacancy left by the death of Justice Antonin Scalia in early 2016.

U.S. Supreme Court Justice Ruth Bader Ginsburg
Supreme Court Justice Ruth Bader Ginsburg participates in a discussion hosted by the Georgetown University Law Center in Washington on Sept. 12, 2019. (Sarah Silbiger/Reuters)

The longtime lawmaker wrote Friday that he believes the situation then was different because Americans decided to flip the Senate to a GOP majority in the 2014 midterms “because we pledged to check and balance the last days of a lame-duck president’s second term.”

Voters opted to bolster the Republican majority in the Senate in the 2018 midterms “because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise,” McConnell added, saying whomever Trump nominates to fill Ginsburg’s seat would be allowed a vote on the floor of the Senate.

Sen. Ted Cruz (R-Texas) said during an appearance on Fox News late Friday that Trump should nominate a successor next week and the Senate should confirm the nominee before the Nov. 3 election.

But other Democrats joined Feinstein in pushing for a delay in even considering the next justice for the nation’s highest court, previewing their strategy of how to prevent Trump from getting his third pick in one term.

“If four Republican Senators commit not to vote to fill this Supreme Court vacancy until after the presidential inauguration, then the voices of the American people will have a chance to be heard,” Sen. Dick Durbin (D-Ill.) said in a statement.

Republicans currently hold a 53-47 majority in the upper congressional chamber. The minority count includes two independents who virtually always caucus with Democrats, Sens. Bernie Sanders (I-Vt.) and Angus King (I-Maine). A simple majority is needed to confirm judicial nominees.

Epoch Times Photo
Sen. Susan Collins (R-Maine) in the Senate subway area of the Capitol before President Donald Trump’s State of the Union address in Washington on Feb. 4, 2020. (Charlotte Cuthbertson/The Epoch Times)

A bruising battle erupted in 2018 when Trump nominated Brett Kavanaugh to replace retiring Justice Anthony Kennedy, leading to a weeks-long stalemate as the parties vied for the votes of a select few moderates.

Kavanaugh was narrowly confirmed 50-48 after tense hearings that included the relay of unsubstantiated sexual assault allegations, several of which were later retracted or revised.

Sen. Susan Collins (R-Maine), one of the deciding votes, took to the Senate floor to denounce what had transpired.

“Today we have come to the conclusion of a confirmation process that has become so dysfunctional it looks more like a caricature of a gutter-level political campaign than a solemn occasion,” she told fellow senators from the Senate floor.

A spokeswoman for Sen. Mitt Romney (R-Utah), another potential swing vote, called a report that Romney committed to not confirming a nominee until after inauguration day “grossly false.”

Democrats fear a more uneven tilt on the court, which now has five justices nominated by Republican presidents and just three by Democratic ones.

Senate Minority Leader Chuck Schumer (D-N.Y.) added: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

Feinstein pointed to the reported deathbed wish of Ginsburg, who was said to have told her granddaughter that she preferred to have her replacement nominated by the winner of the upcoming election.

“We should all honor that wish and wait until after the presidential inauguration to take action,” Feinstein said.

Follow Zachary on Twitter: @zackstieber
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