Justice Ruth Bader Ginsburg said Wednesday that senators refusing to vote on President Obama’s nominee to the Supreme Court should recognize that a president is elected for four years not three.
But she also told incoming law students at Georgetown University that she did not see how a lawsuit from supporters of the nominee, Judge Merrick Garland, trying to force the Senate to act could accomplish their desired outcome.
In response to a question, Ginsburg said the president’s power to nominate Supreme Court justices is contingent on the advice and consent of the Senate.
“If the Senate is not acting, what can be done about it?” Ginsburg asked rhetorically. “Even if you could conceive of a testing lawsuit, what would the response be? ‘Well, you want us to vote, so we’ll vote no.’ ”
But Ginsburg, who in the past has expressed support for Garland to fill the seat of her late friend and colleague Justice Antonin Scalia, disagreed with Senate Republicans who have said Obama should not nominate a replacement and that the vacancy should be filled by the next president.
“I do think cooler heads will prevail, I hope sooner rather than later,” Ginsburg said. “The president is elected for four years not three years, so the power he has in year three continues into year four.”
“Maybe members of the Senate will wake up and appreciate that that’s how it should be.”
It was the only touch of politics in Ginsburg’s talk with Georgetown’s incoming class, and the student asking the question about whether there were “any valid constitutional arguments that would prevent” Obama from naming Scalia’s successor seemed wary.
“I hope that’s not too political,” the student said, to laughter. “Sorry.”
Ginsburg earlier this summer expressed regret for comments she made about Republican presidential nominee Donald Trump. In media interviews, she criticized him as a “faker” and said she feared for the country and the Supreme Court if he were elected.
She later issued a statement:
“On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”
In an interview with the New York Times, Ginsburg called Garland “about as well qualified as any nominee to this court” and, when asked whether senators should act on the nomination, said, “That’s their job.”
Obama nominated Garland on March 16, but Republican Senate leaders have refused even to hold a hearing. His pending nomination is the longest in history.
No other member of the Supreme Court has called upon the Senate to act, and in public forums some have said they will not answer questions about the issue.
But many are known to be friends and admirers of the judge. Garland’s clerks regularly are chosen by the justices to work for them as well, including by Chief Justice John G. Roberts Jr., who served with Garland on the U.S. Court of Appeals for the D.C. Circuit.