Replacing Ginsburg will decide election in more ways than one
By Alan Dershowitz, opinion contributor — 09/21/20 10:00 AM EDT
We are in the midst of a great debate that could affect the future of not only the Supreme Court but of the nation as a whole. Should President Trump nominate a justice to replace the late great Ruth Bader Ginsburg just six weeks before the election? If he does, should the Senate act on the nomination? Or should it refuse, as it did when President Obama nominated Merrick Garland eight months before the 2016 election?
In considering these issues, it is crucial to distinguish between the legal powers of the president and the Senate, on one hand, and political considerations, on the other. Let us start with the legal powers. There is absolutely no doubt that the Constitution permits a president to nominate justices until the last hours of his term in office. If an outgoing president were to nominate a justice on the morning of January 20, just hours before his term was over, that nomination would be valid. We know this not only from the text of the Constitution, but also from precedent.
President Adams nominated John Marshall to be chief justice of the Supreme Court right before he turned the office over to Thomas Jefferson. President Carter nominated Stephen Breyer to the Court of Appeals after being defeated by Ronald Reagan. In both cases, the Senate confirmed these nominations. They went on to serve distinguished terms, with Breyer later becoming a Supreme Court justice. There are other instances as well of nominations in the shadow of an election.
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https://thehill.com/opinion/white-house/517357-replacing-ginsburg-will-decide-election-in-more-ways-than-one
