History Is on the Side of Republicans Filling a Supreme Court Vacancy in 2020

History Is on the Side of Republicans Filling a Supreme Court Vacancy in 2020 By  for National Review

Originally published August 7, 2020 – This is important since RBG passed away on September 19, 2020

Choosing not to fill a vacancy would be a historically unprecedented act of unilateral disarmament.

If a Supreme Court vacancy opens up between now and the end of the year, Republicans should fill it. Given the vital importance of the Court to rank-and-file Republican voters and grassroots activists, particularly in the five-decade-long quest to overturn Roe v. Wade, it would be political suicide for Republicans to refrain from filling a vacancy unless some law or important traditional norm was against them. There is no such law and no such norm; those are all on their side. Choosing not to fill a vacancy would be a historically unprecedented act of unilateral disarmament. It has never happened once in all of American history. There is no chance that the Democrats, in the same position, would ever reciprocate, as their own history illustrates.

For now, all this remains hypothetical. Neither Ruth Bader Ginsburg nor any of her colleagues intend to go anywhere. But with the 87-year-old Ginsburg fighting a recurrence of cancer and repeatedly in and out of hospitals, we are starting to see the Washington press corps and senators openly discussing what would happen if she dies or is unable to continue serving on the Court. Democrats are issuing threats, and some Republicans are already balking.

They shouldn’t.

History supports Republicans filling the seat. Doing so would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016. The reason is simple, and was explained by Mitch McConnell at the time. Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic. Republicans should not create a brand-new precedent to deviate from them.

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