August 7, 2020
Here’s a thought experiment.
Suppose U.S. Supreme Court Justice Ruth Bader Ginsburg dies between now and January 20, 2021. Do you think that the current President would nominate a successor, and that the Republican-controlled Senate would confirm him or her?
After all, it was on March 16, 2016, nearly eight months before the Presidential election and more than 10 months before the inauguration of the new President, that President Obama formally nominated Merrick Garland to fill the vacancy on the Court created when Justice Antonin Scalia died unexpectedly. Senate Majority Leader Mitch McConnell blocked the nomination, professing that he was going to “let the people decide” with their ballots in November. Surely, if Justice Ginsburg died, the President, McConnell and the Republican majority in the Senate would be consistent, right? Right?
The short answer to the thought experiment is that the Republicans would almost certainly push the nomination through. But they should be careful about what they wish for. In the event that Joe Biden is elected in November and the Democrats regain a majority in the Senate, I’m guessing that the composition of the Court may expand by a couple of justices. There is, after all, nothing in the constitution that limits the Court to nine justices. The number is set by statute. And, all of a sudden, the justices nominated by Democratic Presidents could outnumber those nominated by Republicans, 6-5.