Who’s #9? — Filling Notorious RBG’s Supreme Court Seat

September 18, 2020 arrived, and then there were eight. The U.S. Supreme Court, which consists of nine justices, lost the beloved Ruth Bader Ginsburg that day. Her passing left a whole in the hearts of many as well as an empty chair on the Supreme Court bench. While no one can ever fill this “rock star” justice’s shoes, the court proceedings must go on; thus, a new justice must be selected and seated. Cue the controversy and contention to see who’ll be #9.

Selection of a new Supreme Court justice is a joint undertaking. Under the Appointments Clause of the U.S. Constitution, (found in Article II, Section 2, Clause 2 for you non-political science majors), the president is empowered to nominate individuals for public office, including Supreme Court justices. This provision means that President Trump, who will remain the sitting president until noon on January 20, 2021 even if he loses the election, nominates his choice to fill the ninth seat on the high court. That nominee is, of course, Amy Coney Barrett. Bottom line? He wants ACB as RBG’s successor.

But the U.S. Senate plays a big part in who’ll be #9 also. As provided in the Appointments Clause, that legislative body must confirm the nominee. The executive branch and the legislative branch have to work together to add to the highest court in the judicial branch. Is it just me, or is anyone else wondering if the concepts of cooperation and collaboration are grasped in our nation’s capital? 

Controversy has erupted over whether President Trump should be able to fill this judicial position. Why? He may be soon headed out of the White House if he loses to Biden. Politics aside, the answer seems clear under the express language of the Constitution. It says the president is empowered to nominate a judicial candidate. And Trump is the president. There is no asterisk to the Appointments Clause that says “except for an election year when the sitting president might lose the election and vacate the office a few months later.”  Call me a literalist, but this is the common sense meaning of the document’s express words. Don’t take my word for it;  read the constitution provision for yourself. You do have a personal copy of this important document, right?

So how does this replacement process work? Now that President Trump has nominated ACB, the Senate Judiciary Committee, chaired by Lindsey Graham of South Carolina, takes over. Twenty-two members comprise the committee; twelve of its members are affiliated with the majority (Republican) party and ten are associated with the minority (Democratic) party. Confirmation hearings, scheduled to begin October 12th, will be held during which ACB can make an opening statement and be questioned–or grilled depending on the committee member’s party affiliation.

In the end the Judiciary Committee will vote to confirm or reject the nominee. I may not be a math whiz, but ACB should clear this hurdle if the votes are made along party lines–12 Republicans outnumber 10 Democrats. Indeed, Chairman Graham has stated that his committee will approve the nomination on October 22nd.

If, as expected, ACB’s nomination passes the Judiciary Committee, the matter will taken up by the full Senate. This legislative body is currently controlled by the Republicans who hold a  53-47 seat edge. A simple majority vote is required for confirmation, and a vote is anticipated by the end of October. 

ACB should be given a thumbs up since the Republicans control the Senate . But how boring would an easy vote be? Drama is promised as two Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, have stated they believe the next president should pick the nominee. They presumably then won’t vote to confirm ACB. The Democrats will attempt to sway other Republicans to reject the nominee. But if the vote ends up being tied, President Trump can breathe sigh of relief as Vice President Mike Pence would cast the tie-breaker vote. (No, drama there as to which way HE’D vote.) 

The full Senate vote is not the end of the process. Once the Secretary of the Senate advises the president of his nominee’s confirmation, the chief of state must sign a commission officially appointing the new justice. But wait, there’s more! Finally, comes the ceremonial part. The new justice must take both a constitutional oath and a judicial oath. The confirmed nominee raising her right hand to take these oaths is the photo op with which citizens are familiar. 

Who is ACB though, and why would Democrats oppose her confirmation?  Barrett is a 49 year old Caucasian female. If seated on the Supreme Court, she would be its youngest justice. Since justices serve for “good Behaviour” (interpreted to mean for life), Barrett could serve on the court and influence it for decades.

ACB’s  legal qualifications are impressive. She received her law degree from Notre Dame, is currently a judge for the 7th Circuit Court of Appeals, and has served as a law professor at her alma mater, being named as the distinguished professor of the year three times. She teaches Constitutional law, statutory interpretation, and civil procedure (boring rules of how cases are handled for you non-lawyers). ACB also has experience in the Supreme Court itself and is familiar with its operations. She served as a law clerk for Justice Antonin Scalia from 1998-1999. Now she could have folks, clerking for HER.

Judicial qualifications aside, ACB is a great multitasker. She is the mother of seven (five biological and two adopted); her youngest child has Downs Syndrome. Barrett juggles raising a large family (with help from her lawyer hubby), serving as a judge, and teaching law school. Any one of these activities can be a full-time undertaking. If she can manage all that, she could manage stepping up to the high court. 

So what’s objectionable about ACB to Democrats, other than the obvious of her having been nominated by President Trump? She is a conservative and a devout Catholic. Her views, they fear, could lead to the overturning of Roe  and rejection of liberal positions. In a previous interview, Barrett has stated that her faith would not impede her ability to carry out her judicial duties, i.e., she knows what the law is and will apply it. 

We’ll have to stay tuned to see if ACB will be approved to follow RBG and become the fifth women to sit on the high court. Only eleven Supreme Court nominees have been rejected by the Senate since 1789, the last time being Robert Bork in 1987. But this is 2020, so in this year anything can and may happen.

Just WONDER-ing:

Should Donald Trump, as the sitting president, make a Supreme Court nomination even though he might lose the upcoming election? If a candidate is qualified, should he/she be rejected due to their political or religious views? What questions should be asked ACB during confirmation hearings in the Senate Judiciary Committee?

 

 

 

 

2 thoughts on “Who’s #9? — Filling Notorious RBG’s Supreme Court Seat

  1. Thank you for this timely and well written (for all the non lawyer folks) hostory lesson. While I am not a Trump fan whatsoever, I do believe he or if a democratic president was currently in place, have the obligation according to the constitution to appoint a judge. People are getting all up in arms over this. My comment: read the constitution and get a life. We are such a one side or another political society we forget to read the constitution just like we forget what the bible says too! Now I personally do not think Roe v Wade should have ever come to the high court (again, where in the constitution do you see that?), that has been all the talk ever sunce I have been 18 and voting…it should have stayed with the states…and in an ideal world, never came up at all. Thank you again for a timely article.

    Like

  2. Your article is so timely and written well with all of the pros and cons. I feel that the sitting President should be able to nominate the next Supreme Court Judge. Thank you again for all of the information.

    Like

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