Ohio University Washington Hall Spring

Can RBG be Replaced? And If So, When?

The passing of Supreme Court Justice Ruth Bader Ginsburg, 87, has left a hole in this country, in the movement for women’s rights, and most immediately, an empty seat in the highest court in the land. 

Supreme Court Justices are appointed by the sitting president, Ginsburg by President Clinton in 1993. Now, with less than two months until the heated 2020 election ends, Washington is scrambling to find the right time to find a person to fill her legendary shoes. 

This same question arose before the 2016 election when Justice Antonin Scalia died months before Obama left office. Should the sitting president appoint a new justice? Or should it be a call for whoever wins in November? 

In 2016, Justice Scalia died in February, eleven months before Obama’s term ended. If Trump is voted out of office on November 3rd (NPR reports Joe Biden having 268 of the necessary 270 electoral votes to win), that leaves him less than half of that time. However, four years ago, we knew that Obama was leaving office. Trump being a one-term president is still not a guarantee. 

Just days ago, Ginsburg said that she does not want her replacement appointed by President Trump.

Last time, the right to appoint a replacement for Scalia went to Trump when he appointed Neil Gorsuch just a few months into his term. If he appointed a replacement for Ginsburg, he would have three Justices named under him, including the unforgettable appointment of Justice Brett Kavanaugh. 

It would be without a doubt that a justice appointed by Trump would be conservative, strengthening the conservative majority that is already present. 

What would this justice look like? There’s a shuddering irony of a man like Brett Kavanaugh replacing a women’s empowerment icon like RBG. The new Justice could reach the same controversy as Kavanaugh’s 2018 appointment and Senate hearing, or, they could take everyone by surprise and favor moves outside of their conservative alignment, such as Neil Gorsuch’s voting in favor of a recent LGBTQ rights bill that protected gay and transgender workers from discrimination. 

Congress is torn on whether or not to bring Trump’s nominee to the Senate for approval, with Senate Majority Leader Mitch McConnell promising a vote on a Trump-appointed Justice. He says it is the duty of the sitting president, even though that statement is contradictory to the one he gave in the wake of Scalia’s death, refusing a vote on Obama’s nominee for a year. This begs the question- is this really about the president’s powers of appointment, or about holding onto conservative control? 

The President has a list of potential picks for Supreme Court Justices, updated last week, his concern being that Joe Biden’s potential victory could lead to a selection of a liberal justice. 

When informed of Justice Ginsburg’s death outside of a rally in Minnesota, President Trump responded: “She led an amazing life… She was an amazing woman, whether you agreed or not… I am sad to hear that.” A more official statement was released on his Twitter later. 

The legacy of Justice Ruth Bader Ginsburg will live on in the lives of women she has changed, in the landmark cases she ruled on, and on her passionate dissenting statements. The second woman on the Supreme Court, her impact will not soon be forgotten. 

Only time will tell if her successor will follow her path.