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Tuesday, Dec 7, 2021

ANALYSIS: Ruth Bader Ginsburg is gone. Now what? 

The Supreme Court is confusing — especially now. 

Since Ruth Bader Ginsburg, popularly known as R.B.G., died Sept. 18, there has been a lot of talk in the news about what will happen next. What is the precedent for replacing her, and what exactly happened in 2016 when a similar situation arose? The politics behind this is complex and confusing, so let’s break it down. 

The Supreme Court was created to be completely independent of partisan politics. The Supreme Court itself considers its job to be the “final arbitrator of the law” and to be the guardian of equality for all Americans, separate from politics. 

The Court serves the American people, not any political party. And because of that separation from politics, they don't run for office like other public officials.

But that being said, all Supreme Court justices come onto the bench with their own judicial philosophy, which is why we often hear about conservative and liberal judges. Their perspectives on how the law works or how the Constitution should be read often comes from the judges’ own political biases, which often stem from political parties. 

It is for this reason that picking a new Supreme Court justice has profound implications on many political issues despite them being independent of politics.

Once a justice is appointed, they serve for the remainder of their life or until they choose to retire.  A justice is nominated by the sitting president, and is vetted through confirmation hearings in the senate. This process, all in all, typically takes months. 

Senators ask questions about the nominee’s client list, all sources of income, travel destinations, media interviews, writing and more, but they also ask questions about their judicial beliefs. In these specific hearings, we can expect to hear questions about Roe V. Wade, as well as the Affordable Care Act, two increasingly important topics as the court moves to having majority-conservative judges. 

In a typical year, the nominee also has meetings that last about 15 minutes with every member of Congress. All this is before even going forward with the public hearings. 

This extensive vetting process is not expressly outlined as common practice in the Constitution, but has become the precedent over the years in order to make sure that these lifelong appointees are the best people for the job. 

But what is happening now? 

Since the passing of the Notorious R.B.G., President Donald Trump and the Senate have decided to move forward with a nomination to fill her seat on the court — as is their right under the Constitution. Trump announced his nominee Sept. 25:  Amy Coney Barrett, a justice on the 7th Circuit Court of Appeals. He expressed that he wants her to be sworn in to the highest court in the land before the presidential election Nov. 3. 

That is a very quick turnaround. If the Senate votes and swears in a justice in the fewer than 50 days we have until the election, it will be the fastest confirmation of any Supreme Court justice in U.S. history. That is one of the main reasons this pick has become so contentious.

The other reason for the contention surrounding this supreme court seat stems from a decision made by Senate Majority Leader Mitch McConnell to block President Barack Obama’s nominee during the 2016 election. 

In February 2016, the iconic justice and the standard-bearer of conservative judicial philosophy Antonin Scalia died. This prompted Obama to quickly nominate Judge Merrick Garland to be considered — as is his Constitutional right as well. Merrick Garland, chief judge of the U.S. Court of Appeals in D.C., had long been a contender for the highest court in the land, so it was a natural decision for the administration. 

The Senate in 2016, however, was majority Republican, and chose not to hold confirmation hearings for Obama’s nominee. 

When Scalia died, the 2016 primaries were already well underway. There were still 293 days until the 2016 election, and neither Trump nor Democratic Presidential Candidate Hillary Clinton were the clear nominees for their parties. Mitch McConnell believed that the American public was close enough to an election that they should wait to nominate a judge to the Supreme Court. 

"The American people should have a say in the court's direction,” McConnell said at the time. “It is a president's Constitutional right to nominate a Supreme Court justice, and it is the Senate's Constitutional right to act as a check on the president and withhold its consent." 

That is within the Senate's right — the Senate’s confirmation power is, as McConnell said, one of the legislative branch’s checks on the presidency — so they did not go through with a confirmation of Garland. Ultimately, Trump was elected and nominated Neil Gorsuch the year after. 

Essentially, the precedent set in 2016 was that in the year of a presidential election, if there is a seat open, the president should wait to fill it until the election is decided. 

We have found ourselves in the same predicament again. Ginsburg has passed and left a seat open with less than 50 days until the election. So what will the Senate do? 

In this instance, they either go against their word and confirm a new justice, or they continue with the precedent set forth in 2016. For Republicans, they say that the circumstances are different now as Obama was a lame-duck president. He wasn’t up for election. As a result, his authority was lessened. But for Democrats, they say that this is Republicans going back on their words from 2016 for the sake of politics.

It is a complicated decision no matter what happens, and more than anything, it speaks to the mass polarization and politicization of the Supreme Court. 

Ultimately, this is a heated debate, and has led to a wide array of comments on both sides. Whatever decision is made will most definitely impact the election on top of possibly transforming the judicial landscape in America for the foreseeable future and for our generation.  

If I haven't been able to convince you to vote yet, I hope this does. If nothing else, vote for your legislative future, because whoever sits on that Court, will be there for the vast majority of our lives.


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