If the Supreme Court has an empty seat on Election Day, we're asking for trouble

With her passing, it’s good that our nation paused to pay respects to Ruth Bader Ginsburg’s memory, the second female Supreme Court justice to ever serve on the high court. It is also important that we acknowledge her contributions to securing rights for women in her early years, something that I, as a female health care professional, can appreciate and admire.

But these are tumultuous times and the business of our country must move forward. America needs a new Supreme Court justice before Election Day.

First of all, it is what the American people want. A poll, taken shortly before Justice Ginsburg’s passing, showed that 67% felt that hearings on a new Supreme Court Justice should be held. There is bipartisan support for this: 71% of independents think confirmation hearings should be held, and 68% of Republicans and 61% of Democrats agree.

RBG wanted a delay. That's not how it works
There have been plenty of articles written about a story that Justice Ginsburg told her granddaughter that her “dying wish” would be for a new president to choose her successor.

That is a very sentimental story, to be sure; however, in our constitutional system, Supreme Court justices don’t have the power to decide who chooses their successors after they have passed. Just as presidents and members of Congress are not allowed to coronate their replacements. 

Everyone knows that in a legal proceeding, a first-hand account is better than a second-hand account. So, let us listen to what Justice Ginsberg had to say, on the record with TIME magazine in 2016, when asked about the Senate holding confirmation hearings during an election year: “That’s their job … There’s nothing in the Constitution that says the president stops being president in his last year.”

We need a full court for election challenges
But there is even a bigger reason why we need a new justice before Election Day – and that’s the election itself. It has been two decades since the tightly contested 2000 election between Al Gore and George W. Bush. And, in case we forgot, that election came down to a small number of votes in Florida.

After a series of legal challenges, “hanging chads” and all, it finally arrived at the U.S. Supreme Court. There, the court was able to resolve the issue with a narrow 5-4 vote.

There are many indicators pointing to this being another close election. Democrats have already “lawyered up” for this election to a level never seen before. The Biden campaign has created a legal war room headed up by attorneys from the hyperpartisan firm of Perkins Coie.

Yes, you read that right – Perkins Coie, the same law firm that is infamous for having commissioned the debunked Steele Dossier that led to FISA warrant abuses.

A 4-4 tie would lead to chaos
If the election is close, drawn-out litigation is all but certain. Legal decisions will most likely be appealed all the way up to the Supreme Court, just as they were in 2000.

We have had enough uncertainty in our world in 2020, and the last thing we need is an unsettled election that arrives at the Supreme Court with only eight members. That could result in a 4-4 tie in the court, which would lead to unnecessary chaos.

America needs a new Supreme Court Justice before Election Day to ensure that any Supreme Court decisions on the election have a clear and final decision. This is a decision the American people deserve and demand. 

And it’s why we need to move forward now to fill the seat. 

Kelli Ward is a family physician, two-term Arizona state senator and the chairwoman of the Republican Party of Arizona. On Twitter: @KelliWardAZ.
Supreme Court by Mark Fischer is licensed under flickr CC BY-SA 2.0

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