The op-ed by D. Benjamin Barros, dean and professor of law at The University of Toledo College of Law, was published by The Hill on Sept. 22, 2020.
The Supreme Court vacancy caused by Justice Ruth Bader Ginsburg’s death has caused a political crisis. Republicans, eager to cement control of the court, will want to confirm President Trump’s nominee for the position. Democrats, still angry about Senate Majority Leader Mitch McConnell’s (R-Ky.) refusal to allow a vote on President Obama’s nomination of Merrick Garland to the seat created by the death of Justice Antonin Scalia, will do everything possible to keep the seat open so that it can be filled by Democratic nominee Joe Biden if he wins the election.
The Republicans control both the presidency and the Senate and therefore have the ability to fill the seat. Purely as an exercise of political power, however, whether they in fact fill the seat will likely be determined by the outcome of the November election on the presidency and on control of the Senate.
Republicans likely will not fill the seat if Biden wins the presidency and if Democrats win control of both houses of Congress, because Democrats would be in a position to pack the court and otherwise retaliate for what they see as the theft of the Garland seat. In all other scenarios, Republicans are likely to fill the vacant seat during the lame-duck session of Congress that will follow the election.
Read the full column in The Hill.