Republicans should fill post

by Steve Fair

On Friday, Supreme Court Justice Ruth Bader Ginsburg died.  She was 87.  Appointed to the high court in 1993, she was a passionate advocate for gender equality. Reportedly her final words to her granddaughter was that seat not be filled until after the 2020 presidential election was decided.  In a year when the POTUS was impeached, a worldwide pandemic has dominated lives, civil unrest, and multiple hurricanes, 2020 just got more dramatic.  Three observations:

First, Ginsburg was a proud, passionate, consistent liberal on the court.  Much has been made of her unlikely close friendship with the late Justice Antonin Scalia.  While they were close friends, they seldom voted together.  Most judicial scholars agree there are two basic approaches to interpreting the Constitution: textualism/ originalism, and the living constitution model.  Originalism treats the constitution like a statue and gives it the meaning that its words were understood to bear when it was written. Those who believe the document adapts to the times and takes on different meanings, depending on when it is interpreted subscribe to a living document approach. Scalia was an originalist; Ginsburg believed the document was living.  The living model doesn’t interpret the law, it legislates from the bench.

Second, the sudden opening on the court creates a major political squabble.  Democrats are saying the opening shouldn’t be filled until after the November general election, Republicans say it should be filled. Back in 2016, after Scalia’s death, Republicans argued that slot shouldn’t be filled until after the election, but circumstances were different.  Republicans controlled the Senate and President Obama’s nominee to the court, Garland Merrick, was never voted on.   Make no mistake, if Democrats had controlled the Senate in 2016, they would have filled the position while President Obama was still in office. Elections have consequences and the Party in the majority wields the power.  Using that power is part of the political process.

Third, there is no guarantee President Trump’s nominee can get confirmed and it has nothing to do with the short timeline. 51 votes are required to confirm. There are 53 Republican senators. Three( Collins of Maine, Murkowski of Alaska and Grassley of Iowa) have already said they would vote to not hold hearings and take a vote on a Trump nominee until after the November election.   Romney of Utah will likely not support.  But there are Democratic senators on the November ballot in Republican leaning states.  They will face serious pressure from voters to support filling the slot.  It’s possible to get to 51, but it will be a challenge.  

In the last 45 years, the average amount of time from appointment to vote for a justice on the high court is 67 days.  It is 45 days until the general election.  In 1993, Ruth Bader Ginsburg was confirmed 42 days after her appointment, so it can be done.   

In the coming weeks, the American public will be swamped with talk about the ‘right thing to do’ in regard to the opening.  Ginsburg’s dying words will be cited as a reason to wait.  Democrats will claim Ginsburg’s seat on the high court is ‘their seat.’  That is not true- it belongs to all the people.  Republicans control the U.S. Senate and they should use the power given them to quickly hold hearings and schedule a floor vote.  If the roles were reversed and Democrats had control of the Senate, they would have already started the process.  

Steve Fair is Chairman of the 4th district of the Oklahoma Republican Party.  He can be reached by email at  His blog is