Supreme Court Justice Ruth Bader Ginsburg was a towering figure in America’s long march toward greater justice. The impact of her lifelong fight for gender equality will be felt for generations, and I continue to pray for her loved ones and mourn her loss.
Justice Ginsburg’s passing has come at a particularly difficult moment for our nation. More than 200,000 Americans have lost their lives to COVID-19, and more than seven million have been infected.
Small businesses across the country are fighting to keep their doors open, and individuals from coast to coast are struggling to pay rent and keep food on the table for their families. Americans in every state are in desperate need of relief, and in Congress it’s a critical part of our job to help our constituents navigate this crisis.
We’ve had months to negotiate a relief bill, but the Senate has failed to act. Instead of debating how to provide assistance to those who are suffering the consequences of this pandemic, the Senate appears set to focus on filling Justice Ginsburg’s seat in what may be a deeply damaging and partisan fight.
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Just before she died, Justice Ginsburg made clear that her most fervent wish was that her successor be chosen after the next presidential inauguration, when President Trump will be sworn in for a second term or former Vice President Biden will be sworn in as our next president.
This wish wasn’t personal or partisan – it was principled – and every American, Republican and Democrat, should consider why Justice Ginsburg made this her dying wish: to protect the legitimacy of the Supreme Court and the rule of law in this country for all of us.
Justice Ginsburg knew well that her death – and the resulting vacancy on the Supreme Court – was coming at an incredibly complex, perilous time. With less than six weeks to go before Election Day, and with voting already underway in a majority of states, our country is already in the midst of a heated partisan election battle – exactly the kind of fight that the Court is supposed to avoid and rise above.
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She knew well that if the president and the Senate were to force through a nominee to fill her seat in what will undoubtedly be a divisive process, we could do lasting damage to the Supreme Court, an institution our Framers designed to protect our constitutional order and the rule of law.
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Chief Justice John Roberts famously said of himself and his colleagues on the court earlier this year: “We don’t work as Democrats or as Republicans.” Forcing a nominee onto the court through a partisan process this close to the election would directly challenge that principle.
The Senate plays a critical role in this process, and if we continue the alarming erosion of protections against politicization of the court, we all ultimately suffer.
In 2016, my Republican colleagues blocked the nomination of Judge Merrick Garland to the Supreme Court – eight months before Election Day – specifically because it was in an election year.
Leading Senate Republicans, most notably, Judiciary Committee Chairman Lindsey Graham, explicitly pledged to apply the same rule in the last year of President Trump’s term as a matter of principle, but now, their principles have reversed themselves. Aside from the hypocrisy, moving forward on a nominee will do immense harm to the legitimacy of the process for confirming Supreme Court justices.
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For me, this is not about blocking a nominee simply because I disagree with the president who nominated her – this is about protecting the process of how Supreme Court justices are nominated, considered, and confirmed.
If President Trump is re-elected, President Trump should nominate someone to the Supreme Court and the Senate should advise and vote on the nomination, which are our duties under the Constitution. That’s how the system is supposed to work, and nominees should be considered and confirmed based on their qualifications and temperament, not their potential to help one political party or another.
We’re heading down a dangerous path for our country. The polarization of our Congress is making it much harder to address the real challenges we face, like the pandemic and the economic crisis that combined continue to ravage our communities. We have a chance now to change our course by focusing on the crises in front of us and addressing this vacancy after the partisan swirl of an election season.
Ultimately, the Republican majority is responsible for what we do in the next 36 days. They will decide whether they’re going to violate their own precedent.
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They will decide whether the Senate will focus on rushing through President Trump’s nominee, Judge Amy Coney Barrett, instead of working together on another relief package for the American people. And, they will decide how we honor Justice Ginsburg’s legacy in Congress.
To quote what some of my Republican colleagues have said over this past week: "fair is fair." If we are to preserve our institutions and any hope of bipartisanship, the path forward is clear.