TRI-CITIES, Tenn. (WJHL) – As the country mourns the loss of Supreme Court Justice Ruth Bader Ginsburg, the shift is turning now to not just the legacy she leaves behind, but the empty seat.
Less than two months shy of the election, a political battle is taking off as Democrats and Republicans each want their party to be the one to select the justice.
“This is a way to maintain political power past the lifespan of Mitch McConnell or Donald Trump, or most of the people on the Senate,” said Dr. Daryl Carter, ETSU history professor.
President Donald Trump announced he will nominate the next justice, a woman, as early as this week. Many people are asking, can he do this so close to the election?
The answer: yes.
“There is no legal issue here at all, this is all politics,” said Stewart Harris, a constitutional law professor with Lincoln Memorial University.
Experts say it is completely within the constitutional power of the president and the Senate to nominate and confirm a Supreme Court justice leading up to an election; the timing changes nothing.
“The very real fear that the Republican party has is they might not be in power by January. They may lose the presidency or the Senate or both. There is a real opportunity of getting another justice on the bench before January, so they are going to do everything they can to try to do that,” said Carter.
However, Democrats are harking back to a similar scene in 2016, with a much different outcome and response from Republican leaders as they push why they think this nomination should be held off.
Four years ago, Senate Majority Leader Mitch McConnell and Senate Republicans stopped President Barrack Obama from filling a vacant seat on the court at the end of his second term, before the election.
Republicans then said the nomination should be left to the new president and the voters, choosing not to confirm President Obama’s choice for justice, Merrick Garland.
McConnell issued this statement on February 13, 2016 the day of Justice Scalia’s death, saying, “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
Democrats are calling this a hypocrisy on the part of the Republicans to not follow the same precedent now.
There are some notable difference though, when comparing 2016 and 2020.
In 2016, there was a Democrat president in Barrack Obama and a Republican majority in the Senate.
Today, the president and Senate majority are of the same party. Also notable, President Obama was at the end of his second term, meaning there was no way for him to serve again as president. President Trump has the chance to be re-elected to serve as president again.
Tennessee Senator Marsha Blackburn says the two scenarios of 2016 and 2020 are not the same and should not be considered as such.
“Back then with President Obama you had a Republican-controlled Senate. So, if you are following precedent throughout our nation’s history, then what you are going to do is wait in that situation. If you are following precedent with the president and the Senate of the same party then you were going to go ahead and move forward, and that is what we will do,” said Blackburn.
Dr. Carter argues this is all about politics.
“It’s not a fair comparison in the sense that this is not about giving voters a choice, this is about political power. This is about the Supreme Court,” said Carter.
If President Trump successfully replaces Ginsburg, that would mark three justices he has put on the bench. This would be the most of any president for the current Supreme Court. It would also drastically shift the balance toward the right.
“Now, we are at an inflection point with the loss of Ginsburg. Now, we may actually have an overwhelmingly conservative Supreme Court which may do some very notable things, like reversing Roe V. Wade and the Affordable Care Act,” said Harris.
While President Trump has not announced who he is considering to fill the seat, he has promised he will be choosing a woman. Speculation is coming in that the likely front-runners are judges Amy Coney Barrett and Barbara Lagoa.
Stay with News Channel 11 as we bring you the very latest on this developing story.