This editorial has been updated to reflect breaking news as of Saturday evening.
Justice Ruth Bader Ginsburg beat expectations even in the way she became the second woman to sit on the highest court in the nation.
That nod, in 1993, was expected to go to Stephen Breyer, a fellow federal court judge and former Senate Judiciary Committee staffer with close ties to Senator Edward Kennedy, who was at the time the number two Democrat on the committee after then-Chairman Joe Biden.
But Ginsburg so impressed President Bill Clinton that she won the nomination. Breyer would join her on the bench just a year later.
Her tenure would further prove her to be a figure never to be underestimated. She authored key decisions on women’s rights and other pivotal issues, including the 1996 ruling requiring Virginia Military Institute to accept women or lose its funding. She issued scathing dissents on issues such as abortion rights and unequal pay for women— the latter dissent spurred Congress to pass the Lilly Ledbetter Fair Pay Act.
She also continued to work while receiving cancer treatment five separate times since her first diagnosis in 1999, proving that the size of her strength belied her physical stature.
Setting aside her enduring legacy for just a moment, Ginsburg’s death creates an existential moment for the Supreme Court and the nation. She knew it would be, dictating a statement to granddaughter, Clara Spera, before her death that said: “My most fervent wish is that I will not be replaced until a new president is installed.”
After Justice Antonin Scalia passed away in February 2016, Senate majority leader Mitch McConnell created a precedent, declaring that a Supreme Court vacancy created by the death of a justice in an election year should not be filled until the American people had their say at the voting booths. He halted President Obama’s nomination of Merrick Garland, despite McConnell’s own admission that the move had nothing to do with Garland’s qualifications, and kept that seat open for President Trump to fill it. (A move that this editorial board opposed.) And Neil Gorsuch is on the bench as a result.
Regardless of whether you think the hold-up of Garland’s confirmation was a good idea, because McConnell created the election year rule on purported democratic principles he ought to be expected to follow that rule again now — especially because this vacancy has been created much closer to a presidential election. Of course, he almost certainly won’t, as he has proven himself a shill to his party and a corrupt president. At the very least, voters should demand that the Senate, and individual senators in competitive races, vow not to install a new justice during the Senate lame duck session that follows the election and precedes Inauguration Day, should Trump be defeated. Voting before the election on a nominee, as appears to be McConnell’s plan, would be hypocritical and unjust, but that would at least give voters the chance to hold senators up for re-election accountable for their choice in November.
It is undeniable that the future of the Supreme Court is one of the greatest issues at stake in this election. Everything on the minds of voters as they prepare to cast their ballots in the middle of a pandemic — from health care to voting rights to the redrawing of congressional districts next year, which will affect their political power for the next generation — has been affected by Supreme Court rulings in recent years. The court is set to take up yet another challenge to Obamacare in its term that opens next month.
Add the cases working their way up to the high court on issues like reproductive rights, challenges to gun control laws, and the limits of executive power, and it’s clear that there are few decisions more important than who gets to fill a Supreme Court vacancy in a way that will shift its ideological balance.
Not surprisingly, McConnell said Friday night that a nominee from Trump will get a Senate vote. One Republican, Senator Lisa Murkowski of Alaska, said Friday that she would not vote for a replacement before the election. Republican Senator Susan Collins of Maine said in a statement Saturday: “In fairness to the American people, who will either be reelecting the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on Nov. 3.”
In 2018, Senator Lindsey Graham, Republican from South Carolina, said that if he were to become chair of the Judiciary Committee, “if an opening comes in the last year of President Trump’s term and the primary process is started, we’ll wait for the next election.”
Well, now-Chairman Graham and others should walk it like they talk it, and make sure that a Senate vote to confirm a nominee is a nonstarter before the next Inauguration Day. And every member of the upper chamber and every constituent should hold their feet to the fire to give voters their say.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.