The left has pounced on late Justice Ruth Bader Ginsburg’s “fervent wish” that her seat isn’t filled until after the election as though it’s law that must be followed. But what they seem to have forgotten is what she said in 2016 about filling a vacancy during an election year.
When the Republican-controlled Senate blocked former President Obama’s pick of Merrick Garland to fill the late Antonin Scalia’s seat, Ginsburg instructed them to proceed with reviewing the nomination.
“That’s their job,” she told The New York Times in an interview. “There’s nothing in the Constitution that says the president stops being president in his last year.”
Obama also said in 2016 that just because a vacancy arises during an election year doesn’t mean nothing is done about it.
"When there is a vacancy on the Supreme Court, the president is to nominate someone, the Senate is to consider that nomination...There's no unwritten law that says that it can only be done on off-years. That's not in the Constitution text."
Obama in 2016: "When there is a vacancy on the SCOTUS, the President is to nominate someone, the Senate is to consider that nomination. There's no unwritten law that says that it can only be done on off-years. That's not in the Constitution text."— Liz Wheeler (@Liz_Wheeler) September 19, 2020
On Sunday, the Republican National Committee released a video compiling what prominent Democrats had to say in 2016 about filling a seat during an election year.
Sen. Ted Cruz also warned of the dangers this election of an eight-member court, saying it could lead to a “constitutional crisis.”
“Democrats and Joe Biden have made clear they intend to challenge this election,” the Republican senator said Friday. “They intend to fight the legitimacy of the election. As you know, Hillary Clinton has told Joe Biden ‘under no circumstances should you concede, you should challenge this election.’ And we cannot have Election Day come and go with a 4-4 Court,” Cruz told Sean Hannity on Friday. “A 4-4 Court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of … a contested election.”