American Democracy in Peril

President Donald Trump’s rush to replace judge Ruth Bader Ginsburg six weeks out from the election is politically indecent and potentially dangerous for the Supreme Court itself.

A few days before she died on Sept. 18 at the age of 87, Supreme Court Justice Ruth Bader Ginsburg confided in her family that it was her “most fervent wish” that she not be replaced before a new president was seated in the Oval Office on Jan. 20.

Truthfully speaking, this was not a secret. Nominated by Bill Clinton in 1993, Ginsburg, the most progressive of the nine Supreme Court justices, clung desperately to life despite the pancreatic cancer that consumed her, as she tried to make it beyond the Nov. 3 presidential election. Without a doubt, she was hoping that the Democratic candidate would win.

But above all, as a jurist who tirelessly, and with great talent championed respect for the Constitution and equal rights, she knew the risk her death would pose to political institutions given the uncertainty of the last stretch of the presidential campaign, as well as the risk it would pose during the transition of power between November and January with the current administration still in office.

Donald Trump Is Playing with Fire

The opportunity, however, was too good for Donald Trump to pass up. The president did not even wait 24 hours to dishonor the tribute to the departed justice that had been issued for him by the White House in unusually respectful and moderate terms shortly after the political left announced the death of the iconic jurist.

Although Joe Biden, Trump’s Democratic opponent, asked him to defer the nomination of Ginsburg’s replacement until a president-elect and newly elected Senators were in place, Trump tweeted that the process should be carried out “without delay.”

Trump also made no secret about wanting to take advantage of the moment for his own political purposes, announcing that he would choose a woman in light of the fact that most women voters have indicated they intend to support Biden. Trump will therefore nominate his candidate this week.*

The president is playing with fire. His eagerness to replace Ginsburg is not only politically indecent, but dangerous to the legitimacy of the high court, the pillar of American democracy, since Republican Senate Majority Leader Mitch McConnell himself, blocked President Barack Obama’s nomination to the Supreme Court eight months before the 2016 presidential election on the grounds it was too close to the election and not permitted.

An Increasingly Politicized Supreme Court

Trump has already appointed two Supreme Court justices — one of them, thanks to the obstruction by Sen. McConnell in 2016. At the same time, Trump has actively restructured the judicial branch by appointing conservative judges to the federal courts of appeal. By trying to force the Senate to confirm a third justice in an increasingly politicized Supreme Court, Trump is putting the Senate in an awkward position if the Nov. 3 election ends up with a Democratic White House and a Democratic Senate.

Supreme Court justices have, of course, demonstrated wisdom and independence in the past, even in the Trump era. But, on the eve of an election that promises to be logistical chaos due to the pandemic, this new shock can only further weaken American democracy.

*Editor’s note: President Trump named Amy Coney Barrett as his choice to replace Justice Ginsburg. The nomination must be confirmed by the Senate for Barrett to be seated on the court.