The death of Supreme Court Justice Ruth Bader Ginsburg on Friday will put intense political pressure on Republican senators like Pat Toomey of Pennsylvania, who cited an approaching presidential election when they refused to even allow a vote on filling an open seat in the final year of Barack Obama’s presidency.
In a March 2016 statement, Toomey pointed to the election less than eight months away, as well as the fact that Obama’s nomination of Judge Merrick Garland to the seat left open by the death of Justice Antonin Scalia would tip the ideological balance of the high court.
“With the U.S. Supreme Court’s balance at stake, and with a presidential election fewer than eight months away, it is wise to give the American people a more direct voice in the selection and confirmation of the next justice,” Toomey said then.
In an op-ed in the Patriot-News that April, Toomey wrote: “With lifetime tenure, the next justice will determine the Court’s balance for a generation. In that light, I believe it is sensible to allow the American people to participate in the choice of Justice Scalia’s successor less than seven months from now.”
This time, a presidential election is mere weeks away, with early voting already underway in some states, and counties in Pennsylvania expected to begin sending mail ballots to voters soon. Republicans in 2016 made the coming election the core of their argument for holding open the seat, an unprecedented political maneuver that, in the end, denied Obama the chance to fill the seat and handed it instead to Trump.
The other condition of Toomey’s 2016 argument has changed: With Scalia’s death, the court’s liberal and conservative wings were split, 4 to 4. Now the court is already controlled by Republican appointees, as President Donald Trump has elevated two justices to the bench.
That won’t assuage Pennsylvania progressives, who have long loathed Toomey and are sure to accuse him of rank hypocrisy if he supports a Trump nominee just weeks before an election — four years after he joined Republicans in blocking a floor vote on Obama’s nominee months before an election.
A Supreme Court confirmation battle weeks before Election Day is sure to roil the presidential campaign between Trump and Democrat Joe Biden in unpredictable ways. It adds yet another contentious issue to an election season already rocked by crises like the coronavirus pandemic, the accompanying recession, and a national reckoning over systemic racism.
In a statement Saturday, Toomey said Ginsburg “served on our nation’s highest court for nearly three decades with distinction and honor.”
“As just the second woman to serve on the Supreme Court, Justice Ginsburg was a trailblazer in the legal profession,” he said. “While I usually disagreed with her legal and political views, she proved time and again that it is possible to disagree with someone without being disagreeable. Simply put, Justice Ginsburg left an indelible mark that will resonate for generations.”
Toomey did not address whether he would support filling her seat before the election. First elected to the Senate in 2010, Toomey isn’t up for reelection again until 2022. He is widely seen as considering a run for governor that year.
Sen Bob Casey (D., Pa.) is likely to vote against any Trump nominee this year. During the fight over Garland’s nomination, he said: “Senators are free to vote however they choose on a Supreme Court nominee, but they must do their job and give that nominee a fair hearing and a timely vote.”
In a statement late Friday, Casey called Ginsburg “a pioneer for gender equality, a champion for human rights and a fierce defender of workers on an increasingly corporate Supreme Court.”
“Justice Ginsburg served our Nation honorably and with distinction for four decades,” he said. “Her heroic battles with cancer inspired countless Americans.”
And he pointed back to Republicans' refusal to consider Garland’s nomination.
“Consistent with the precedent set by Majority Leader Mitch McConnell in 2016,” Casey said, “Justice Ginsburg’s seat should not be filled until the presidential election concludes and the candidate chosen by voters is sworn into office.”
But McConnell quickly made clear Friday that whomever Trump nominates would receive a floor vote in the Senate. And Trump said Saturday that Senate Republicans should help him fill the seat “without delay.”
“We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices,” he said on Twitter. “We have this obligation, without delay!”