The Politics of Supreme Court Nominations
Ideas for Teaching about the Impact of Justice Ginsburg's Passing
Ruth Bader Ginsburg, arguably one of the most popular Supreme Court justices of all time, died on September 18 at age 87. She served on the nation’s highest court for 27 years after becoming the second woman ever appointed to this position. Prior to her Supreme Court appointment, Ginsburg argued many successful cases as a litigator and became the first female faculty member to obtain tenure at Columbia Law School. As a Jewish woman who pursued a legal career during the 1950s while also raising children, Ginsburg understood something about prejudice and discrimination. She became a constant voice and champion for civil rights. Ginsburg co-founded the Women’s Rights Project at the American Civil Liberties Union and successfully argued multiple cases to advance rights for women and parents in the workplace and beyond. Then, as a Supreme Court Justice, when a majority of her fellow jurists on the high court voted in a way that could curtail these and other civil rights, Ginsburg authored powerful dissenting opinions that reflected her understanding of an American democracy that strove for equality and opportunity for all. Even those who did not always agree with Ginsburg’s opinions admit that she was a towering legal figure. Filling Ruth Bader Ginsburg’s vacancy will be a tall task for the justice who takes her seat as well as for the politicians who are in charge of the process of seating the next jurist.
A Contested Process. Per the Constitution, the filling of a Supreme Court vacancy requires a nomination from the President followed by a review and vote from the Senate. This particular vacancy comes at a time when Congress is already deep in debate over an aid package to address the economic fallout from COVID-19. On top of this, the United States is six weeks away from a presidential election. While the Constitution does not prevent the filling of a vacancy this close to the election, Republican legislators made the argument that it was inappropriate for President Obama to fill the vacancy left by Justice Antonin Scalia’s death in February of 2016, just over six months before the presidential election. Republican senators held the majority in 2016, as they do today, and used that power in 2016 to block President Obama’s nomination of Merrick Garland. When President Trump took office he nominated Neil Gorsuch, who was later confirmed by the Senate. In 2018, President Trump had the opportunity to fill another seat with Brett Kavanaugh. As it stands now, there are five justices appointed by Republicans and three by Democrats. There are six men and two women now seated, two of whom are people of color. Democrats today echo what Republicans argued in 2016: that the people should have a voice in deciding this next justice and that this is best achieved by waiting until after the election to proceed with a nomination.
What’s at stake? Justices are appointed for life, and, on average, spend decades making decisions on matters of great concern to the country. The Supreme Court weighs in on such issues as immigration, health care, same-sex marriage, gun control, climate change, abortion, affirmative action, and unions, among other politically contentious issues. In addition to all of these extremely influential rulings, the court can play a role in deciding the presidential election if the outcome is disputed. This happened in the presidential election of 2000, and with the pandemic-induced changes to the election process in 2020 it is not difficult to imagine that the election outcome could be contested. At a time when people without health care are particularly vulnerable, when an unprecedented number of wildfires and hurricanes are revealing the impact of climate change, and when renewed, urgent calls for racial justice – and a backlash to this call – are reverberating around the country, the makeup of this third branch of our federal government promises to help shape the health of our people, planet, and democracy.
Teach the Election: The Politics of Supreme Court Nominations. Download our full Teach the Election resource with readings and activities that help put the current controversy into historical context. This resource includes student-friendly descriptions of the traditional process for appointing Supreme Court justices, the story of the failed nomination of Robert Bork in 1987, and FDR's failed attempt to "pack the Court."
Analyze Ginsburg's Dissents. Have government students choose one of Justice Ginsburg’s dissenting opinions and analyze it for what it says about how Ginsburg interpreted individuals’ Constitutional rights. How did Ginsburg’s dissent differ from the majority opinion in its interpretation of the Constitution?
Research Upcoming Cases. Ask government or U.S. history students to choose a topic of interest to them and research what legal scholars are speculating about how the U.S. Supreme Court may decide the issue if it comes before an eight person court, or a nine person court with either a Republican or a Democratic-nominated justice. Possible topics could include: immigration/DACA; women’s reproductive rights/Roe v. Wade; healthcare/Affordable Care Act; gay rights; climate change legislation; religious freedom.
What if the Court is Changed? Ask government students to debate the potential benefits or consequences of implementing ideas shared by two legal scholars that could limit the influence of the Supreme Court, such as requiring a supermajority for some decisions and protecting certain legislation from review by the courts.
Voter Registration. Direct students to learn about the process of registering to vote as a way to help prepare them for civic engagement: https://registertovote.ca.gov/
Compare Perspectives. In order to follow the debate between many Republicans and Democrats over how to handle a Supreme Court nomination during an election year, students can watch or read the excerpts below to see how this debate has evolved over the previous several decades.
After students review this historical and current commentary, have them consider some or all of the following questions in an online discussion forum: a) What reasons does each give for his opinion on how to handle nominations in an election year? b) Do you see any new or different points raised by either Joe Biden or Mitch McConnell between 2016 and 2020? c) Which arguments do you find most convincing and why? d) How do you think President Trump should handle this issue between now and the election? e) Do you foresee any potential negative consequences for the Republican Party if Senators (a majority of whom are Republican) confirm a nomination before the election? Do you foresee negative consequences if the Senate does not confirm a new justice? f) What do you believe is the potential impact on public approval for the office of the president, Congress, or the U.S. Supreme Court if a new justice is confirmed before the election, or if President Trump and the Senate decide not to proceed before the election?
- On the Senate floor on June 25, 1992, Joe Biden (then a Democratic Senator from Delaware and chairman of the Senate Judiciary Committee) made a ninety minute speech in which he outlined his opinion on how President George H.W. Bush should handle a vacancy created on the Supreme Court if a justice retired in the coming months. NYTimes Video excerpt here.(3:10)
- Later that day, Senator Strom Thurmond (R-SC) offered a counter argument to Senator Biden’s position and explained his understanding of the appointment process. Video excerpt here (4:56)
- On March 16, 2016, Majority Leader Senator Mitch McConnell (R-Ky) responded to President Obama’s Supreme Court justice nomination. Video excerpt here. (6:17)
- On March 3, 2016, an op-ed piece written by Vice-President Joe Biden (D - DE) to clarify the position he had taken in 1992 was published in The New York Times. Article here.
- On September 21, 2020, Majority Leader Senator Mitch McConnell (R-Ky) spoke on the Senate floor to explain why the nomination process can and should go forward this year. CNN video excerpt here. (3:41)
- Also on September 21, 2020, Democratic nominee Joe Biden spoke to why the nomination process should wait until after the election process. WTMJ-Milwaukee video excerpt here. (2:39)
- Finally, Justice Ginsburg herself weighed in on the debate during her final days, asking her granddaughter to make known Ginsburg’s “most fervent wish” that a new justice not be seated until the next presidential term begins.