The second woman to be nominated and confirmed by the U.S. Senate to serve on the U.S. Supreme Court, she was a woman of remarkable accomplishment and a great inspiration to women all across the world. I have always been personally moved and inspired by her ability to disagree agreeably. For example, she and my favorite jurist of all time, Justice Antonin Scalia, were complete opposites in their views on the Constitution and in their views of many of the more controversial matters that came before the Supreme Court. But they both had great respect for each other — and for each other’s opinions, even if by each account the other was wrong. This seems to be a lost art today. She was a lady of great intellect and civility, of which we need a lot more.
Justice Ginsburg will lie in repose at the Supreme Court building this week, before lying in state at the U.S. Capitol later this week. She’ll be the first woman ever accorded the honor of lying in state in the Capitol.
Discussion has now turned, of course, to replacing Justice Ginsburg on the bench. Senate Majority Leader Mitch McConnell has indicated he plans to move forward with a vote on the President’s nominee, which is expected to be announced this weekend. Holding a vote on the President’s nominee is entirely appropriate and completely consistent with the precedent that Leader McConnell cited after the death of Justice Scalia in 2016. And even if there was no precedent to follow, it is his constitutional duty. It is also the constitutional duty of the Senate to either confirm, or not to confirm, the nominee — whichever they decide to do. That is what “advise and consent” in the Constitution means.
For perspective, there has been a vacancy on the Supreme Court in an election year 29 times in American history. In 10 of those instances, the White House was held by one party and the Senate was held by another party. Nine of those ten times, the Senate declined to confirm the President’s nominee.
In the other 19 instances, the vacancy came in an election year when both the White House and the Senate were controlled by the same party. In 18 of those 19 circumstances, the President’s nominee was confirmed; only one was rejected by the Senate.
There is plenty of historical precedent for the Senate to vote on and confirm the President’s nominee before the end of the year. I have no doubt that President Trump will nominate an excellent jurist, one who is an originalist, with impeccable credentials. When he does, the Senate should move forward and confirm the President’s nominee.
In the meantime, my thoughts and prayers are with Justice Ginsburg’s family and friends during this emotionally difficult time.