Politics Debating a Supreme Court on the brink
Is 8 enough? Court vacancy could roil possible election case
WASHINGTON (AP) — Justice Ruth Bader Ginsburg's death has left the Supreme Court shorthanded during a polarizing presidential campaign in which President Donald Trump has already suggested he may not accept the outcome and the court could be called on to step in and decide the fate of the nation. It's the second time in four years that a justice has died during an election year, though that eight-justice court was not asked to referee any election disputes in 2016. Today, both sides have armies of lawyers ready to take the outcome to court.
In the first presidential debate between President Trump and former Vice President Biden, we are likely to see sharp contrasts on issues and speaking styles. One contrast in particular should be front-and-center, since Fox News Channel's Chris Wallace - this debate's moderator -that the Supreme Court would be a main debate topic: Whether President Trump and Senate Republican Leader Mitch McConnell should spend time forcing the replacement of Justice Ruth Bader Ginsburg onto the court while the nation is reeling from more than due to COVID-19, and even as people across the country are for president.
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Let's step back for some perspective. Anyone who still believes America should follow rules and customs developed over centuries to make our government work for the benefit of everyone in America - not just one political party or another - may feel alienated today. On the heels of four years of, , , and for basic from this White House, some in our nation may feel mocked as naïve or ostracized as a holdover from a bygone era for even thinking that our government might one day be good for all our people.
Trump and McConnell'sto jam through a replacement for Justice Ginsburg against her - and - to wait until the next president is inaugurated; to announce that decision before Ginsburg was laid to rest; to announce it before a nominee was even named to replace her; to promise a nominee who will pass Trump's litmus tests against and the , which the Trump administration is right now in the Supreme Court , including its protection of people with (and could be one); to demand a so that the new justice can hand Trump victories in his attempts to the results of ; even as Americans are already casting ballots for president and senator - all of these work to weaken whatever hope millions in America still have that our courts can be a place of impartial reason and justice, instead of simple power politics.
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Trump and McConnell made their decision to fill this vacancy far more deeply into a presidential election year than when President Obama nominated Judgeback in 2016. Then, no nominee should be considered for a Supreme Court vacancy at all in the last year of a president's term - the justification they used to block Garland from getting so much as a hearing, much less a vote. We know that hypocrisy is as old as politics itself, but the head-snapping 180-degree turnabout by Republicans marks a new low, corroding what little confidence people have in the legitimacy of its governing institutions.
And it is legitimacy, after all, that gives the Supreme Court its power.
To be clear, legitimacy for the court is the product of the confidence placed by the American people in the justices that they can act as trustworthy and independent arbiters in the cases before them, allowing people to voluntarily follow its orders. The flip side of this coin is that without legitimacy, the court can no longer fulfill its critical constitutional function. The fewer people who believe the court is impartial, the fewer who will follow its orders without being forced to - and that is a road none of us should want to travel. Nevertheless, the actions of Trump and McConnell corrode the legitimacy of the Supreme Court, confirming in the minds of many that, as they have suspected all along, the justices are just politicians whose jerseys - Team R or Team D - are hidden under their black robes.
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Make no mistake, Trump and McConnell have placed a cloud of corruption and partiality over nominee Judge Amy Coney Barrett.
The two candidates should be required to confront this reality on the debate stage. The legitimacy of the Supreme Court, the fundamental rights of the people, and our ability to trust in basic fairness are at stake - and those stakes could not be higher.
, a former clerk at the U.S. Court of Appeals for the Ninth Circuit, is president of , a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution's text and history. Follow her on Twitter .
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Fact check: No guarantee Obama would've replaced Ginsburg with a progressive justice .
The claim that Barack Obama would've replaced Ruth Bader Ginsburg with a progressive justice is lacking context.A progressive Supreme Court justice could have been confirmed by the Senate if Justice Ruth Bader Ginsburg had retired under President Barack Obama, the social media post claims.