19 September 2020

Death of Ruth Bader Ginsburg triggers debate on whether her replacement should be nominated before or after the election

The death of US supreme court Justice Ruth Bader Ginsburg little more than six weeks before the election cast an immediate spotlight on the high court vacancy, with senate majority leader Mitch McConnell quickly vowing to bring a vote on whoever President Donald Trump nominates.

Democratic nominee Joe Biden vigorously disagreed, declaring “voters should pick the president and the president should pick the justice to consider”.

Mr McConnell, in a statement some 90 minutes after Ms Ginsburg’s death was announced, declared unequivocally that Mr Trump’s nominee would go to a vote, even though he had stalled then-president Barack Obama’s choice for months ahead of the 2016 election, eventually preventing a ballot.

Mr Trump, in brief remarks to reporters after learning of her death, called Ms Ginsburg “an amazing woman” who “led an amazing life”.

He had continued with a campaign speech for more than an hour after her death was announced, saying later he had been unaware of her passing.

Mr Trump had said in the speech that the next presidential term could offer him as many as four appointments to the nine-member court, whose members are confirmed for life, and added: “This is going to be the most important election in the history of our country and we have to get it right.”

Mr Biden, returning to Delaware from his own campaign stop in Minnesota, praised Ms Ginsburg on his arrival.

Ginsburg was called ‘an amazing woman’ by the President (AP)

She was “not only a giant of the legal profession but a beloved figure,” he said, adding she “stood for all of us”.

The process of replacing her should not begin until after the election, he made clear.

Ms Ginsburg’s death could significantly affect the presidential race, further stirring passions in the deeply divided nation as the campaign pushes into its stretch run ahead of the November poll.

Voters should pick the president and the president should pick the justice to consider

Mr Trump took the stage for a Minnesota rally soon before Ms Ginsburg’s death was announced. He spoke for more than 90 minutes and did not mention it, apparently having not been alerted to the development. He spoke to reporters about her passing as he boarded Air Force One to return to Washington.

A confirmation vote in the US senate is not guaranteed, even with a Republican majority.

Typically it takes several months to vet and hold hearings on a supreme court nominee, and time is short ahead of the election.

Key senators may be reluctant to cast votes so close to the election. With a slim majority of Republicans – 53 seats in the 100-member chamber – Mr Trump’s choice could afford to lose only a few.

Mr McConnell did not specify the timing, but pushing a confirmation off to the post-election “lame-duck” session would carry other complications, including the political tangle of trying to push it through in the final weeks of the year after voters have decided who controls the White House and the Senate.

Biden is arguing for an appointment after the election (AP)

Mr Trump has made the appointing of federal judiciary figures – including two supreme court justices – part of his legacy. He said last month he would “absolutely” try to fill a vacancy on the high court if one came up before the end of his first term.

“Absolutely, I’d do it,” Mr Trump said in an August 11 interview with conservative radio host Hugh Hewitt.

“I would move quickly. Why not? I mean, they would. The Democrats would if they were in this position.”

Mr Trump last week added 20 names to the list of candidates he has pledged to choose from if he had future vacancies to fill.

The president tried to cast the list in contrast with judges who could be nominated if Mr Biden wins in November, warning Mr Biden would select “radical justices” who would “fundamentally transform America without a single vote of congress”. This came even though Mr Biden has never outlined his list of potential picks, and the fact the Senate must confirm any nominee.

Naming his possible choices, less than two months before the election, is aimed at repeating the strategy Mr Trump employed during his 2016 campaign, when he released a similar list of potential judges in a bid to win over conservative and evangelical voters who had doubts about his conservative credentials.

The average number of days to confirm a justice, according to the Congressional Research Service, is 69 days, which would be after the election.

Mr Biden has promised to nominate a black woman to the high court if given the chance.

He has said he is also working on a list of potential nominees, but the campaign has given no indication it will release names before the election.

Democrats believe doing so would unnecessarily distract from Mr Biden’s focus on Mr Trump’s handling of the pandemic and the economy, while also giving the president and his allies fresh targets to attack.

Mr Trump, however, insisted presidential candidates “owe the American people” a list of figures they would consider because, aside from “matters of war and peace, the nomination of a supreme court justice is the most important decision an American president can make”.

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