On Friday, Supreme Court Justice Ruth Bader Ginsburg died of complications from cancer at the age of 87. Journalists, commentators, former colleagues, politicians, and friends will have much to say about her extraordinary career and legacy in the days ahead. But just before she died, Ginsburg herself pointed to what will likely be the most urgent question for those who supported the causes that motivated her life’s work: What will happen to her seat, which could tip the court to a hard-right majority for decades to come?
As NPR reported, Ginsburg’s final statement, dictated to her granddaughter Clara Spera from her deathbed, was simply: “My most fervent wish is that I will not be replaced until a new president is installed.”
After Justice Antonin Scalia died in February 2016 and President Barack Obama nominated Merrick Garland, Senate Majority Leader Mitch McConnell blocked any hearings that might result in Garland’s ascension to the bench, saying the voters needed to decide in that year’s election, which, when Scalia died, was nine months away. “The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said the day Scalia died. “Therefore, this vacancy should not be filled until we have a new president.”
On Friday, Senate Minority Leader Chuck Schumer responded to the news of Ginsburg’s death by recycling the exact same statement verbatim, pointing to the political battle ahead.
Now that Republicans control the Senate and Donald Trump the presidency, though, McConnell has publicly and privately vowed to fill any opening this year, will of the voters and less than seven weeks to go until Election Day, be damned.
Indeed, McConnell has spoken often about what he would do if Ginsburg died. The New Yorker quoted a former Trump White House official earlier this year saying, “McConnell’s telling our donors that when R.B.G. meets her reward, even if it’s October, we’re getting our judge. He’s saying it’s our October Surprise.”
In May, McConnell said publicly, “Oh, we’d fill it,” if a seat were to open up before the election.
And Friday night, McConnell made his intentions official, saying:
In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Whether McConnell has the votes remains an open question that will dominate the weeks leading up to the election and inauguration. He is certain, though, to try to ensure that Ginsburg’s final request is not granted.