On Friday, September 18, US Supreme Court Justice Ruth Bader Ginsburg, a champion of women’s rights, died due to complications from pancreatic cancer. She left behind an impressive legacy. From being only the second woman appointed to the Supreme Court to authoring scathing dissents against rulings she felt threatened gender equality, Ginsburg set herself apart not only as a justice, but as one of the most memorable feminist icons of the last century. 

Unfortunately, Ginsburg’s passing leaves behind much more than an inspiring judicial career. The vacancy on the Supreme Court caused by her death has major implications for the upcoming presidential election. Hours after news of her passing was announced, notable politicians on either side of the aisle began taking public stances on the possibility of President Trump appointing a replacement. Democratic leaders such as presidential candidate Joe Biden and Senate Minority Leader Chuck Schumer gave multiple statements arguing that any attempt to fill the seat should occur after the election, whereas President Trump and Senate Majority Leader Mitch McConnell both expressed a desire to appoint and confirm a new justice as soon as possible. 

If this situation feels familiar, that’s because it is. In 2016, the year of the last presidential election, the late conservative justice Antonin Scalia died roughly nine months before the election. Then-president Barack Obama sought to fill the seat quickly, naming moderate judge Merrick Garland as the new appointee. However, Senate Majority Leader Mitch McConnell fiercely opposed the appointment and demanded that the former president wait until after the election, arguing that “the American people should have a voice in the selection of their next Supreme Court Justice.” McConnell then spent the next nine months refusing to hold confirmation proceedings.

McConnell’s decision to block the appointment of Garland was monumental in more ways than one. First, there was no precedent for this decision, rendering it a landmark course of action for the Senate. Second, delaying the appointment procedures allowed the Republican party to turn the Supreme Court vacancy into an election issue, which helped them to garner more support from voters, both in terms of fundraising and in actual votes cast. In the end, President Trump was elected and appointed conservative justice Neil Gorsuch, who was promptly confirmed by the Republican-controlled Senate. 

McConnell’s actions in 2016 are a far cry from his recent position concerning the possibility of President Trump appointing a new justice. This may be another attempt to turn a Supreme Court vacancy into an election issue, a potentially wise decision, given President Trump’s standing in recent polls. According to polls conducted by CBSNews/YouGov, ABCNews/WashingtonPoll, and NBCNews/Marist, Trump appears to be losing significant ground with his predominant voter demographic. Shifting the focus away from the Trump administration’s response to the COVID-19 pandemic and recentering the election around social issues like abortion and health care might help the President regain the support that he’s lost. 

However, while this may be a strategic move for McConnell, it is also wholly antithetical to normal Senate proceedings. Much like the Supreme Court, the Senate relies heavily on precedent, or informal rules based on past decisions. Because there was no precedent for McConnell’s 2016 decision to block Garland’s appointment, McConnell was free to go through with it, but to reverse that decision now is a blatant disregard for precedent which opens up a field of potential landmines for future proceedings. Former President Barack Obama commented on this, urging McConnell to “apply rules with consistency” or else risk jeopardizing “the rule of law, the legitimacy of our courts, and the fundamental workings of our democracy.”
Fully aware of the controversy her death would ignite, days before her death, Ginsburg allegedly told her granddaughter, Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.” As it stands, it is unclear as to whether or not the late justice’s desire will be realized, but one would hope that even if the appointment is going to be sooner rather than later, that the appointee selected will continue to uphold Ginsburg’s commitment to preserving the Constitution’s spirit of fairness and equality for all.