By: Kayley Bell
Following the death of Justice Ruth Bader Ginsburg, who died on September 18th, 2020, there was a vacancy in the US Supreme Court (in comparison to the usual 9 justices). The date of her death is significant because it determined when a new justice could be constitutionally nominated to the US Supreme Court, as a new justice cannot be nominated by the President unless the Supreme Court is in recess. Judge Ginsburg passed on September 18th.
The Supreme Court of the United States is in session from the first Monday of October to, usually, late June or early July. This year, 2020, the Supreme Court went into session on October 5th. Therefore, Judge Ginsburg passed while the Supreme Court was in recess, further meaning that the President of the United States had the authority to nominate someone to fill the vacancy.
The President is granted the constitutional authority, and obligation, to nominate an individual to fill the vacancy. This is referred to in Article II, Section 2, Clause 2 of the US Constitution: “He shall have the Power… he shall nominate, and by with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The President must nominate the individual, fare a series of hearings by the Senate, and be approved by the Senate, and take the oath in order to be appointed as Supreme Court Justice of the United States of America. The Senate’s constitutional obligation to approve or veto the President’s nomination is granted in Article II, Section 2, Clause 2. two-thirds of the Senate must vote to approve the nomination in order for the appointment to proceed.
Judge Amy Coney Barrett was confirmed to the US Supreme Court on October 27th, 2020. The Presidential election of 2020 did not have a bearing on Judge Barrett’s appointment even though Democrat Presidential Nominee, Joe Biden, won the election. This would have been a different scenario if President Donald J. Trump had not nominated a judge or if he/she had not been approved by the Senate prior to the election. The only way that Judge Barrett could be removed from office is through impeachment and conviction, as Article III, Section 1, Clause 1 of the Constitution states that Justices “shall hold their Offices during good Behavior.” This was clarified by the Judiciary Act of 1869. In other words, a Justice is to serve until they either die, retire, resign, or are removed from office. Note that the only Supreme Court Justice to ever be impeached was Judge Samuel Chase on March 12th, 1804.
Judge Chase was appointed in 1796 during President Washington’s second term. Chase was impeached by the House on the accusation that he was letting his partisan leaning affect his court decisions. He was acquitted by the Senate and therefore was not removed from office.
Many in opposition to Judge Barrett’s appointment claim that it is “unprecedented for a Supreme Court Justice to be nominated and appointed that close to a presidential election.” This is proven untrue by observing the appointment of Judge William J. Brennan Jr. at the end of President Eisenhower’s first term as President. He was appointed by President Eisenhower in October 1956. This was only about one month before the Presidential election of 1956 between candidates President Dwight D. Eisenhower and Governor Adlai E. Stevenson II. This can be paralleled to President Donald J. Trump’s nomination of Judge (now Justice) Amy Coney Barrett, as it was right before the presidential election of 2020. Trump, like Eisenhower, also was running for his second term.
Although very controversial and not necessarily ethical, former President Donald J. Trump’s Supreme Court nomination of Amy Coney Barret was constitutional.
Student Views
The following statements do not reflect the opinion of the author, nor the opinions of the Wisconsin Youth in Government Program. When high school students were asked about their opinion on Judge Amy Coney Barrett and her Supreme Court Nomination, these were some responses:
All quotes came from students at Sturgeon Bay High School. Permission has been granted by each student to use their quotes. Some have chosen to remain anonymous.
“I’m scared that the constitution will not be upheld. I am scared as a woman for my reproductive rights. I am scared that the rights of the LGBTQ+ community will be stripped away.” ~Anonymous (Senior)
“I have been seeing a lot of mostly democrats and liberals posting about ACB [Justice Amy Coney Barret] and making fun of her looks. These are also the same people preaching the idea that we should NEVER make fun of others’ looks, or judge them based on appearance. The hypocrisy around Amy has escalated greatly. People are upset that she got sworn in days before [the] election because the Democrats didn’t get a person into the supreme court months before the election of 2016. This Is because the person they wanted sworn in made it clear he wanted 10-12 people in the supreme court so there could be ties and it was ‘even,’ which never would have worked.” ~Anonymous (Junior)
“I think having such a conservative and unbalanced SCOTUS [Supreme Court of the United States] is very unfair and against the ideals of equality in America, because having such a lopsided court gives republicans an advantage that democrats can’t even begin to compete with. I’ve also seen reports of her bringing death as a punishment for abortion. Although I don’t necessarily personally agree with abortion. The fact that she wants to take people’s lives away for that is beyond me. Is this 2020 or the 1700’s? Another big problem I see in her views is her feelings toward the LGBTQ+ community (my cousin and several friends are though) and I feel so much for them right now, so I can’t believe how they feel. There is no reason to reject someone’s marriage because of who they love. If someone came up to you or I and said we couldn’t marry our boyfriends because they didn’t think we should love someone else and change ourselves for the ideals of the government is so extremely terrible…. I just really think that her true colors and negative beliefs are showing through already, and we’re stuck with her for life.” [sic] ~Anonymous (Junior)
“Personally, I see her as being appointed as a step backward, though we don’t know what’s official and what’s going on. I do not know what her beliefs are on a lot of stuff, but I disagree with her opinions on gay rights, women’s rights, and healthcare rights. Overall I wish that Trump would have respected RBG’s [Ruth Bader Ginsburg’s] final wishes of not being replaced before the election because it’s only going to get more complicated from here.” ~Cheyenne Umberham (Sophomore)
“She’s not fighting for women, and she’s not fighting for justice of any sort. She’s just another puppet in the government to take basic rights away.” ~Michaela Duhn (Senior)
“I think she is going to try and take away rights that are one that everyone deserves, such as LGBTQ+ and legal abortions. I don’t think she is a good candidate at all, in one of her speakings she couldn’t even name all 5 of our 1st amendment rights! She has also made comments like saying the n-word in the work environment which I think is completely inappropriate and wrong.” ~anonymous (Freshman)
Work Cited
“Amy Barrett’s Conservative Faith Creates Uncomfortable Debate over Religion and Policy.” Los Angeles Times, Los Angeles Times, 9 Oct. 2020, www.latimes.com/politics/story/2020-10-09/barrett-conservative-faith-uncomfortable-debate.
Block, Eliana. “VERIFY: Yes, If Joe Biden Is Elected President, and the Senate Hasn’t Confirmed a SCOTUS Justice by Inauguration, Biden Can Name a New Nominee.” wusa9.Com, WUSA, 23 Sept. 2020, www.wusa9.com/article/news/verify/do-not-publish-verify-if-the-senate-hasnt-confirmed-the-supreme-court-justice-nominee-can-the-incoming-president-withdraw-the-nominee/65-4315e9ae-ab70-41e4-835a-74df92b8ef72.
Britannica, The Editors of Encyclopaedia. “United States presidential election of 1956”. Encyclopedia Britannica, 28 Jul. 2014, https://www.britannica.com/event/United-States-presidential-election-of-1956. Accessed 4 March 2021.
Brownfield, Troy, et al. “The Only Supreme Court Justice to Be Impeached.” The Saturday Evening Post, 27 Oct. 2020, www.saturdayeveningpost.com/2020/10/the-only-supreme-court-justice-to-be-impeached/.
Cole, Brendan. “Amy Coney Barrett’s Views on LGBTQ Rights, Birth Control, Abortion and Other Issues.” Newsweek, Newsweek, 28 Oct. 2020, www.newsweek.com/amy-coney-barrett-supreme-court-abortion-lgbtq-obamacare-1542329.
Herndon, Astead W., and Maggie Astor. “Ruth Bader Ginsburg’s Death Revives Talk of Court Packing.” The New York Times, The New York Times, 19 Sept. 2020, www.nytimes.com/2020/09/19/us/politics/what-is-court-packing.html.
Read, Bridget. “Everything We Know About Amy Coney Barrett’s Views.” The Cut, The Cut, 22 Oct. 2020, www.thecut.com/2020/10/amy-coney-barrett-trump-scotus-pick-what-to-know.html.
“Senate Prepares for Impeachment Trial.” U.S. Senate: Senate Prepares for Impeachment Trial, 12 Dec. 2019, www.senate.gov/artandhistory/history/minute/Senate_Tries_Justice.htm#:~:text=Samuel%20Chase%20had%20served%20on%20the%20Supreme%20Court%20since%201796.&text=The%20House%20voted%20to%20impeach,in%20two%20politically%20sensitive%20cases.
Smentkowski, Brian P.. “William Brennan”. Encyclopedia Britannica, 20 Jul. 2020, https://www.britannica.com/biography/William-Joseph-Brennan-Jr. Accessed 4 March 2021.