Replacing Ginsburg will decide election in more ways than one

We are in the midst of a great debate that could affect the future of not only the Supreme Court but of the nation as a whole. Should President Trump nominate a justice to replace the late great Ruth Bader GinsburgRuth Bader GinsburgAbortion rights face most difficult test yet at Supreme Court Mississippi's attorney general asks Supreme Court to overturn Roe v. Wade 10 books that take readers inside the lives of American leaders MORE just six weeks before the election? If he does, should the Senate act on the nomination? Or should it refuse, as it did when President Obama nominated Merrick Garland eight months before the 2016 election?

In considering these issues, it is crucial to distinguish between the legal powers of the president and the Senate, on the one hand, and political considerations, on the other. Let us start with the legal powers. There is absolutely no doubt that the Constitution allows a president to nominate justices until the last hours of his term in office. If the outgoing president were to nominate a justice on the morning of January 20, hours before his term is over, that nomination would be valid. We know this not only from the text of the Constitution, but also from precedent in history.

President Adams nominated John Marshall to be the chief justice of the Supreme Court just before he turned the office over to Thomas Jefferson. President Carter nominated Stephen Breyer to the Court of Appeals after being defeated by Ronald Reagan. In both cases, the Senate confirmed these nominations. They then went on to serve distinguished terms, with Breyer later becoming a Supreme Court justice. There are more instances as well of nominations that occur in the shadow of an election.

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So the legal powers of the president and the Senate are clear beyond dispute. But just because they have this authority does not necessarily mean they should exercise it. Persuasive arguments have been made on both sides. When Obama had nominated Garland, Majority Leader Mitch McConnell had claimed, “The American people should have a voice in the selection of their next Supreme Court justice. This vacancy should not be filled until we have a new president.” Senator Lindsey Graham made the same point more strongly, adding that the Senate was establishing a new precedent that would be binding on future Senate decisions.

Perhaps that precedent should be formalized into a Senate rule that would postpone consideration of a nomination made after the party conventions in an election year for president. But there is no binding rule and, now that the shoe is on the other foot, McConnell and other Republicans, including Graham, have made arguments seeking to distinguish the nomination by Obama of Garland from the nomination of President Trump.

They argue the situation is different when the president and the Senate are from the same party, as they are now, than when the president is from one party and the Senate is controlled by the other party, as was the case with the nomination of Garland. This is a political issue that the voters will have to assess in the election, in which both McConnell and Graham are in close races. Voters will now have to decide if Senate Republicans violated principles that they articulated when it benefited their party.

Indeed, for many senators on both sides of the aisle, politics will prevail over principles, as it usually does when the stakes are high. It is not only Senate Republicans who have changed the views that they expressed in 2016. Senate Democrats have done so as well, including Minority Leader Charles Schumer. Even Joe Biden has changed his stance on this issue. In 1992, he opposed President Bush nominating a justice before the election. But in 2016, he supported Obama nominating Garland. Now he is opposed to Trump nominating a replacement for Ginsburg this year.

One argument now being made by Republicans, and that was made by Democrats as well in 2016, is that it is dangerous to have eight justices on the Supreme Court without a ninth justice to break tie decisions. When that argument was given by Democrats in 2016, Republicans responded by saying that a Supreme Court with eight justices can operate effectively, since relatively few decisions are decided on split majority votes.

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Some Republicans say that it is notably important that a ninth justice be appointed because of the likelihood that the 2020 election will end up in the Supreme Court, as did the 2000 election, when the Supreme Court decided by a vote along party lines to stop the Florida recount, which effectively gave the win to Republican candidate George Bush.

We must now think. What would be worse for the nation? A tie with eight justices in the Supreme Court which allows a lower court ruling to stand? Or a split majority ruling with nine justices in which the deciding vote was cast by a justice nominated on the eve of the election by a president who is a litigant in the case that is before the Supreme Court?

There is, of course, a third alternative. Chief Justice John Roberts is a master on avoiding Supreme Court decisions that appear partisan in nature. He is determined to ensure that the high court remains above politics, and he has the skills to persuade justices to do what is best for the Supreme Court as an institution. Whether he will be able to do this with the current highly divisive climate we have is uncertain.

Two Senate Republicans, Susan Collins and Lisa Murkowski, said they will not vote to confirm a justice nominated before the election. If a third joins them, some may wonder whether a Supreme Court nomination should be confirmed by the vice president in a tie vote. Two more defectors could likely stop a confirmation. Whether any other Republicans will apply the principles they espoused in 2016 and join them may depend on who the president nominates. So stay tuned. This battle is just starting.

Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is an author whose newest book out is “The Case For Liberalism in an Age of Extremism” available on Kindle. His podcast is “The Dershshow” available on Apple and Spotify. You can follow him on Twitter @AlanDersh.