The death of Associate Justice of the Supreme Court of the United States (SCOTUS) Ruth Bader Ginsburg on Friday of complications from metastatic cancer of the pancreas opens up a vacancy that is now destined to be in the spotlight of the US presidential campaign.
The passing of Ginsburg, who served the nation’s highest court for 27 years, now sparks a debate about who is likely to replace her.
In the days leading up to her death, Ginsburg, who had repeatedly and publicly criticised US President Donald Trump, had dictated a statement to her granddaughter, Clara Spera:
“My most fervent wish is that I will not be replaced until a new president is installed.”
Echoing these sentiments, Senate Minority Leader Chuck Schumer (D-NY) wrote on Twitter that the place left vacant by Ginsburg “should not be filled until we have a new president”.
However, Ginsburg’s death affords an opportunity for Donald Trump to appoint a third member of the Supreme Court to change the balance of power so that the Republicans have a 6-3 majority.
Previously, Donald Trump appointed Justice Neil Gorsuch and Justice Brett Kavanaugh.
The procedure to appoint a member of the Supreme Court is laid out in the US Constitution and is as follows.
1. The President chooses a nominee after the death, retirement or impeachment of a Supreme Court justice.
The nominee is investigated by the FBI and other agencies before he or she is announced.
2. The Constitution requires that the nominee be confirmed by the Senate in order to take a seat in the High Court. Once the nominee is put forth by the President, the nomination goes before the Senate’s Judiciary Committee.
At present it comprises 11 members of the majority party (the Republicans) and nine members of the minority party (the Democrats). The ratio is based on the ratio of majority to minority members of the Senate.
Sen. Lindsey Graham, R-South Carolina, is the chairman of the committee.
The Judiciary Committee subsequently holds hearings, questioning the nominee, and listening to both supporters and opponents.
After the hearings, a vote is taken in the committee, with the nominee receiving either a favorable recommendation, a negative one or the nomination will be reported to the full Senate with no recommendation.
3. If the nomination makes it to the Senate floor, it is then up to the majority party to set the agenda for subsequent Senate action.
The Majority Leader, at present Republican Sen. Mitch McConnell, will determine when the nomination will be reviewed on the full Senate floor.
After this happens, debate could go on for an indefinite period. If it comes down to a vote, it’s a simple majority vote either to confirm or reject the nominee.
4. Though Senate confirmation is needed for a nominee to be appointed to the Supreme Court, a President can make a temporary appointment to fill the vacancy, bypassing the Senate, if the latter is on recess.
In that case a person appointed would serve on the court until the end of the next Senate session.
Finally, one does not need to be a lawyer to be a Supreme Court justice, but all Justices have been trained in the law.
AP Photo / J. David Ake
The US Supreme Court building
After a justice has been confirmed, he or she sits on the Supreme Court for life.
Sen. McConnell on Friday vowed that a vote would be held on a Trump nominee, and refused to say whether it might be rushed through ahead of the 3 November presidential elections, writes The New York Times.
Democrats immediately responded by pledging to resist any attempt to confirm a justice before the inauguration.
The following federal appeals court judges are seen as the favourites to fill Ginsburg’s shoes.
Amy Coney Barrett
Judge Amy Coney Barrett, 48, who sits on the US Court of Appeals for the Seventh Circuit, has been considered a top contender for the nomination, reports USA Today.
She had been a finalist for Donald Trump’s second high court nomination, which went to Brett Kavanaugh in 2018.
Allison Eid. Amy Barrett. Joan Larsen.
Three exceptionally strong women. Three exceptional federal appeals court judges. 🇺🇸 pic.twitter.com/2lUvSFtgvU
— Least Dangerous Blog (@LeastDangerous) November 3, 2017
A favorite of religious conservatives, Barrett soared to the top of the President’s list of potential nominees after her 2017 confirmation hearing for a seat on the US Court of Appeals for the Seventh Circuit. At the time, the Democrats had underscored her deep Catholic faith rather as an obstacle, and she was confirmed, 55-43.
“If you’re asking whether I take my faith seriously and I’m a faithful Catholic, I am,” Barrett had responded during that hearing.
Appointed to the Michigan Supreme Court in 2015, Federal appeals court Judge Joan Larsen, 51, spent a large part of her career as a professor at the University of Michigan Law School.
Nominated by Trump to the US Court of Appeals for the Sixth Circuit in 2017, she was confirmed by a 60-38 vote in November.
Larsen, who graduated from the University of Northern Iowa and Northwestern University School of Law, was a deputy assistant US attorney general in the Office of Legal Counsel under President George W. Bush from 2002-2003.
A former Georgia Supreme Court justice and solicitor general, the youngest of the frontrunners for Ginsburg’s seat is Britt Grant.
At 42, Grant is said to share a close friendship with Brett Kavanaugh, for whom she clerked on the US Court of Appeals for the District of Columbia Circuit.
Judge Kavanaugh’s ringing endorsement of Britt Grant’s record may serve as a window into his own judicial philosophy. It makes you wonder: what, exactly, does Judge Kavanaugh agree with her on? pic.twitter.com/pPSdyDZYKG
— Chuck Schumer (@SenSchumer) July 30, 2018
Grant was nominated to the US Court of Appeals for the 11th Circuit in April 2018 and confirmed 52-46.
Kavanaugh had lauded her as a “fair and even-handed” judge, while she, in turn, vowed to “strive to live up to Judge Kavanaugh’s example of integrity, stability and commitment to the rule of law.”
Grant previously worked briefly in George W. Bush’s administration and for former Georgia governor Nathan Deal.
After Donald Trump named Neil Gorsuch as his first Supreme Court nominee in 2017, Allison Eid, 55, a former law clerk for Justice Clarence Thomas, succeeded Gorsuch on the US Court of Appeals for the Tenth Circuit.
Eid graduated from Stanford University and the University of Chicago Law School, subsequently teaching at the University of Colorado Law School.
After a brief tenure as Colorado’s solicitor general and for a decade on the state Supreme Court, Eid made it to Trump’s list of potential high court nominees in 2016.
Nominated in 2017 to the Tenth Circuit, she was confirmed, 56-41, in November.
A former Kentucky judge and US attorney with extensive trial court experience, also said to be a Kentucky protégé of Senate Majority Leader Mitch McConnell, Thapar 51, would be the first Indian American to reach the nation’s highest court if nominated.
Thapar was confirmed to his current post on the US Court of Appeals for the Sixth Circuit in May 2017.
Born in Detroit to Indian immigrants, Thapar grew up in Toledo, Ohio with his maternal grandfather.
He studied economics and philosophy at Boston College, earning a law degree at the University of California-Berkeley.
When Trump announced earlier this month his list of possible Supreme Court nominees, should he have a reason to nominate more justices either in his present term or the next one, the names included were also Judges Thomas M. Hardiman of the Third Circuit, in Philadelphia; and William H. Pryor Jr. of the 11th Circuit, in Atlanta.
The president also cited Ted Cruz, who ran for President of the United States in 2016, winning Republican contests in 12 states before withdrawing from the race. However, Cruz has already said he would not be interested in the court.
Others on the list were Republican senators Tom Cotton of Arkansas and Josh Hawley of Missouri, as well as Donald Trump’s former solicitor general, Noel J. Francisco.
A source was cited by The New York Times suggesting the nominee will be announced sooner rather than later, with the White House hoping Sen. McConnell moves forward with a vote. Trump, The New York Times adds, will likely meet with those on his short list in the coming days.