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Ruth Bader Ginsburg death: The Merrick Garland ‘rule’ Democrats want Republicans to uphold

How are US Supreme Court judges selected? Why are Democrats worried after Justice Ruth Bader Ginsburg's death?

Written by Om Marathe , Edited by Explained Desk | New Delhi |
Updated: September 20, 2020 10:19:35 am
ruth bader ginsburg, ruth bader ginsburg dead, Merrick Garland rule, what is Merrick Garland rule, who is ruth bader ginsburg, supreme court, SC supreme court nominee, indian expressPeople gather at the Supreme Court Friday, Sept. 18, 2020, in Washington, after the Supreme Court announced that Justice Ruth Bader Ginsburg had died. (AP Photo: Alex Brandon)

Hours after towering feminist, US Supreme Court judge Ruth Bader Ginsburg died, the Republican party said it would move to fill her vacant seat in the court, despite less than two months to go before the November 3 presidential election.

Mitch McConnell, the leader of the Republican party in the US Senate, said, “Americans re-elected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary… President Trump’s nominee will receive a vote on the floor of the United States Senate.”

The statement has caused a furore among Democrats, who are accusing Republicans of backtracking from the position they took in 2016, when judge Merrick Garland, an appointee of President Barack Obama, did not receive a vote in the Senate because the vacancy had arisen in the final year of Obama’s presidency.

How are US Supreme Court judges selected?

Unlike in India where judges appoint judges under the Collegium system, appointees to the 9-judge US Supreme Court are elected directly by politicians. The White House nominates judges, and the US Senate — the upper house of the US Congress — confirms them. Currently, the Republican party controls both the Senate and the presidency.

Also, in the US, Supreme Court justices can serve for life, making the bench’s liberal-conservative divide highly consequential for decades. The court’s oldest member in history, Justice Oliver Wendell Holmes, Jr., retired in 1932 at age 90 after serving 30 years. Justice Ginsburg was 87, and was on the bench for 27 years.

Also read | Justice Ruth Bader Ginsburg’s most significant judgments and dissents

What happened with Judge Garland in 2016?

When a seat on the Supreme Court became vacant in February 2016 after the death of the noted conservative jurist Justice Antonin Scalia, President Barack Obama, who was then in the last year of his presidency, nominated the highly regarded moderate judge Merrick Garland to take Scalia’s place in the court.

At the time, although the White House was in Democratic hands, the Senate had a Republican majority, and Republican leaders said they would neither hold hearings nor schedule a vote for Garland when less than a year remained until the November 2016 election.

Despite furious complaints by Democratic leaders, Garland, then (and still) the chief justice of the D.C. Circuit Court of Appeals, became the first nominee in over a hundred years to be denied a hearing by the Senate, and was sidestepped entirely after Republicans won the 2016 race.

Since the election of President Trump, Republicans have filled Scalia’s seat and added one more judge to the Supreme Court, bringing the number of conservatives on the bench to five, with four progressives.

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ruth bader ginsburg, ruth bader ginsburg dead, Merrick Garland rule, what is Merrick Garland rule, who is ruth bader ginsburg, supreme court, SC supreme court nominee, indian express Justice Ruth Bader Ginsburg died at the age of 87. (The New York Times: T J Kirkpatrick)

What are Republicans saying now?

Well before Ginsburg’s death, Republican leader McConnell shocked Democrats after he declared his party’s intention to go ahead and add another justice to the court should a vacancy arise in 2020, despite it being an election year.

Republicans explained this volte-face by saying that in 2016, although Obama was in the White House, it was their party which had been given a majority in the Senate just two years prior during the 2014 midterm elections, and so the American people had the right to decide the next Supreme Court justice, not a divided Washington.

Republicans have defended their new position, saying this time, their party controls both the White House and Senate.

Don’t miss from Explained | US Presidential Elections: In Trump 2020, Nixon 1968 echo

ruth bader ginsburg, ruth bader ginsburg dead, Merrick Garland rule, what is Merrick Garland rule, who is ruth bader ginsburg, supreme court, SC supreme court nominee, indian express The American flag is lowered to half-staff Friday, Sept. 18, 2020, in Washington. (AP Photo: Alex Brandon)

How have Democrats reacted?

Democrats, who have been indignant since what they believe was a “theft” of Garland’s seat, have strongly reacted to McConnell’s statement.

Before her death, Ginsburg herself said, “My most fervent wish is that I will not be replaced until a new president is installed,” according to National Public Radio (NPR).

Democratic presidential nominee Joe Biden said, “Let me be clear– the voters should pick the president, and the president should pick the justice for the Senate to consider.” He added that this was the original Republican position.

“The (presidential) election is only 46 days off. The fastest justice ever confirmed was in 47 days, and the average is closer to 70 days. So, this should be done with full consideration.” he added.

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Former President Barack Obama echoed Biden, saying, “A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.”

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