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Choosing a Ginsburg Successor Should Not be Rushed

Professor Glenn Smith

Every American, regardless of their political party and ideology, should be profoundly worried by the current administration’s intention to nominate—and confirm—a replacement for the late Justice Ruth Bader Ginsburg before the November 2020 election.

So believes California Western’s Professor Glenn Smith, whose recently published commentary appeared in the San Diego Union-Tribune.

Professor Smith, an expert on constitutional law and commentator on U.S. Supreme Court decision-making, worries that the plan threatens to further undermine the perception of the Supreme Court as the one institution that can rise above short-term politics and advance the rule of law and liberty for all through meaningful checks and balances.

As Smith sees it, the Constitution’s Framers gave federal judges significant tools—including life tenure and other protections against political reprisal—to assist with this check-and-balance role. But the reality is that the Court’s ability to stand up for constitutional rights and limits—and an individual justice’s ability to “call it as they see it” without being accused of political motivations—has always depended upon the perception that the justices are not just politicians who wear black robes.

That is why, in his Union-Tribune commentary, Smith warns that a confirmation in the blazing heat of the 2020 election would have all the earmarks of a rushed political hatchet job. It would inevitably seem to sacrifice the institutional reputation of the Court for short-term political expediency.

Equally dangerous would be a post-election attempt to “beat the clock” and pack the Court before inauguration day with a nominee chosen by a president or supported by senators the voters just rejected, continues Professor Smith. It is hard to imagine a more blatant suggestion that the Court is nothing more than a political pawn to be captured in a desperate partisan game.

Facing her impending death, Justice Ginsburg expressed a fervent hope that she not be replaced before the 2021 presidential inauguration. Professor Smith concludes that there is no better way to honor the legacy of this truly remarkable woman, lawyer, and jurist—while protecting the long-term role of the Court and the Constitution she so ably served—than by heeding her request.

To read Professor Smith’s Union-Tribune commentary, click here.