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The death of Ruth Bader Ginsburg, the leader of the liberal wing of the U.S. Supreme Court, has set off an expected firestorm of debate over how soon she should be replaced.
Normally, we believe that a president has wide leeway to pick a qualified nominee to serve on the nation’s highest court, with the U.S. Senate fulfilling its role to “advise and consent.” But these are unusual times.
President Donald Trump faces an election in a little over a month. Control of the U.S. Senate, which plays an increasingly important role in Supreme Court nominations, could also change after the Nov. 3 election.
In addition, Senate Majority Leader Mitch McConnell set a new standard for consideration of nominees in 2016. Conservative Justice Antonin Scalia died in February 2016. McConnell said that, because it was an election year, no nominees from President Barack Obama should be considered. He refused to hold hearings on Obama’s nominee, Merrick Garland.
“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,” McConnell said in February 2016.
With even less time between Ginsburg’s death and the election, the same standard should apply now.
Sen. Susan Collins, who is up for reelection this year and who was one of a few Republican senators who met with Garland and supported holding hearings on his nomination, rightly said that a nomination should come from whoever is elected president in November, either Trump or Democrat Joe Biden. She is one of only two senators who have publicly opposed a quick nomination process, which McConnell and the White House have pledged.
“In order for the American people to have faith in their elected officials, we must act fairly and consistently — no matter which political party is in power,” Collins said Saturday. “President Trump has the constitutional authority to make a nomination to fill the Supreme Court vacancy, and I would have no objection to the Senate Judiciary Committee’s beginning the process of reviewing his nominee’s credentials.”
The Judiciary Committee process would need to start over if Joe Biden wins the presidency, her office clarified on Monday.
Here’s the important point: “Given the proximity of the presidential election, however, I do not believe that the Senate should vote on the nominee prior to the election,” she added. “In fairness to the American people, who will either be reelecting the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd.”
Collins was followed by fellow Republican Sen. Lisa Murkowski in opposition to moving quickly on a Supreme Court nominee before the election.
Murkowski went further than Collins in definitively saying she would vote “no” on a nominee before the election.
“I would not vote to confirm a Supreme Court nominee. We are 50 some days away from an election,” she said in an interview with Alaska Public Radio.
Trump criticized both senators, who are among the few Republicans in the Senate who have voted against his priorities, in an interview Monday morning. “I think that Susan Collins is going to be hurt very badly,” he said.
Standing up for acting “fairly and consistently — no matter which political party is in power,” is absolutely the right position to take and certainly is not a reason to “hurt” a politician who is acting on principle rather than political advantage.