President Trump, Despite Objections, Can Fill the Supreme Court Seat

Kip Lynch ’22

News Editor

Although you will rarely hear a Republican praise Ruth Bader Ginsburg and her decisions while an Associate Justice of the Supreme Court of the United States, she rightly deserves praise for her determination to overcome the sexist barriers of the late 20th century and serve as a litigator and champion fighting for equal rights for women. According to her granddaughter Clara Spencer, Ruth Bader Ginsberg stated that “My most fervent wish is that I will not be replaced until a new president is installed.” Despite her achievements, Republicans are under no obligation to fulfill her dying wish.

In response, Democrats frequently raise the issue of Barack Obama’s nomination of Merrick Garland in an attempt to illustrate Republican hypocrisy, and perhaps rightly so. Nevertheless, while I disagreed with Senator Mitch McConnell’s decision to not hold any hearings, his decision was perfectly legal. The Democrats’ demands that Garland receive a vote were nothing more than political posturing given that they knew full well that votes are not required and that he wouldn’t receive a confirmation. Joe Biden, as Chairman of the Senate Judiciary Committee, once said that he would not consider any Supreme Court nomination by George H.W. Bush during the presidential-election year of 1992. Then, in 2016, he castigated McConnell for refusing to hold a vote for Garland. 

McConnell was similarly hypocritical when he stated that he would move forward with President Trump’s nominee this year while stating in 2016 that the American people “should have a voice in the selection of their next Supreme Court justice.” Senator Chuck Schumer, for all his valid criticisms of McConnell, is foolish when he states that Republicans have “no right” to fill the Supreme Court vacancy. 

His threats to pack the court and reduce it no more than a political instrument are no better than Trump listing sitting legislators as potential Supreme Court picks. Speaker of the House Nancy Pelosi, too, refusing to relent from the possibility of impeachment, reflects just how disingenuous and fractured our political system has become. Exercising one power to trump another is no path to moral redemption.

Precedent is only useful to Democrats and Republicans so long as it furthers their own political goals. Although Democrats point to precedent on why Trump should not present a nomination to the Supreme Court during an election year, they took no issue with Obama’s nomination of Merrick Garland during an election year. Their attempts to point at precedent are also feeble, given that there have been 29 such vacancies and, in each case, the president made nominations. 

It is true, however, that said nominees have rarely been confirmed. Republicans only aligned themselves to the imaginary “Biden rule” of waiting until after the presidential election so long as it was feasible in 2016. They have obviously now abandoned it for the sake of political expediency.

In this sea of hypocrisy, one must look to the law. The Constitution clearly states that the President has the power to nominate a person to fill a seat on the Supreme Court. That person can fill the seat only with the advice and consent of the Senate.  While procedural postulations might reveal the erroneous tendencies of many legislators, the fact remains: Trump, even as a lame duck, retains the authority to nominate. 

Anyone who pretends otherwise is a fool.