Supreme Court Justice Ruth Bader Ginsburg said in 2016 that there is “nothing in the Constitution” that prevents a president from filling a vacant seat on the high court in his final year in office.
Ginsburg’s words came after colleague Justice Antonin Scalia passed away in February 2016 and then-President Obama nominated Judge Merrick Garland to fill the seat. Senate Majority Leader Mitch McConnell (R-KY) refused to bring up the nomination in the GOP-controlled chamber.
“Asked if the Senate had an obligation to assess Judge Garland’s qualifications, her answer was immediate,” The New York Times reported in July 2016.
“That’s their job,” she said. “There’s nothing in the Constitution that says the president stops being president in his last year.”
But she apparently changed her mind. In a statement dictated to her granddaughter Clara Spera days before her death, Ginsburg reportedly said, “My most fervent wish is that I will not be replaced until a new President is installed.”
Then-Vice President Joe Biden said much the same thing in 2016, declaring that the president had a “constitutional duty” to seat a justice on the high court when a vacancy arises.
“The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent,” Biden wrote in a New York Times op-ed in 2016.
“It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend,” he wrote. “That’s why I was so surprised and saddened to see Republican leaders tell President Obama and me that they would not even consider a Supreme Court nominee this year. No meetings. No hearings. No votes. Nothing. It is an unprecedented act of obstruction. And it risks a stain on the legacy of all those complicit in carrying out this plan.”
In a later speech at Georgetown University, Biden also said: “I would go forward with a confirmation process as chairman, even a few months before a presidential election, if the nominee were chosen with the advice, and not merely the consent, of the Senate, just as the Constitution requires.”
Biden has made a 180-degree turn with the death of Ginsburg, writing on Twitter on Friday: “Let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg.”
The vice president was echoing the words of his boss. After Scalia’s death, Obama declared that he had a duty to nominate a successor.
“The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead,” Obama wrote in 2016.
Obama said he was looking for a replacement with a “sterling record, deep respect for the judiciary’s role, an understanding of the way the world really works.”
“That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength,” Obama wrote.
But like Biden, Obama has flip-flopped on the issue — now that a Republican president is in office and the GOP controls the Senate.
“Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in,” he wrote in a statement.