Shortly after Supreme Court Justice Ruth Bader Ginsberg passed away, Republicans began talking about replacing her on the bench and with whom, but there remains some question as to whether they can choose the new justice. Supreme Court justices serve for life. In 2016, Senate Majority Leader Mitch McConnell refused to vote on then-President Barack Obama's appointment to the court, arguing that the choice should not be made in an election year. Now, with the 2020 presidential election less than two months away, McConnell is saying the opposite.
According to a report by The Washington Post, Republican leaders including McConnell, Sen. Lindsey Graham, Sen. Thom Tillis and President Donald Trump are all moving quickly to install a Republican-picked replacement for Ginsburg before November. However, a new poll conducted by The New York Times and Siena showed that voters do not think Trump should be able to nominate his pick, based mostly on the events of 2016. Democrats have spoken out as well, with the party's nominee, former Vice President Joe Biden, saying that the nomination should wait until the next president is in office in January of 2021.
The question of who is legally right in this instance is hard to pin down. The Senate's refusal to vote in 2016 did set a strong and recent precedent, though at the time, their legal ground for doing so tenuous at best. The fact that McConnell is still in office and intends to make the opposite decision, in this case, may reflect poorly on him and his party politically, but that might not be enough to stop him.
Regardless of what the law says, McConnell has already openly vowed to bring Trump's Supreme Court nomination to a vote in the Senate before election day. Arguments about legality aside, he has the support of many Republican lawmakers because of the issues that the Supreme Court can weigh in on — chiefly women's reproductive rights. Many of those lawmakers claim that this situation is different from the one in 2016.
"Merrick Garland was a different situation," Graham said during an appearance on Full Court Press with Greta Van Susteren this weekend. "You had the president of one party nominating, and you had the Senate in the hands of the other party. A situation where you've got them both would be different."
Graham has often acknowledged and embraced the contradiction in this logic over the last four years, in a slew of TV and radio interviews cited by the Post. While Democrats may argue the legality of a Republican nomination, it is not clear what tools they have to stop it.