Constitutional law professor weighs in on future of SCOTUS

Published: Sep. 20, 2020 at 11:51 PM EDT
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BURLINGTON, Vt. (WCAX) - As the country continues to mourn the death of Supreme Court Justice Ruth Bader Ginsburg, Republicans and Democrats are clashing over her replacement.

On Sunday, Constitutional Law Professor Jared Carter talked with WCAX News about the future of the court, the confirmation process and the controversy over whether there’s a double standard for Senate Republicans to try to fill the vacancy with 40 days until the November election after blocking President Obama’s attempt to confirm Merrick Garland after the 2016 death of Justice Antonin Scalia, citing that it was an election year.

Carter says the confirmation process will likely play out for the next few months.

“The way the process is going to play out is the president will nominate— and this is consistent with the U.S. Constitution— the president will nominate a candidate to fill Justice Ginsburg’s place. That nominee will go to the Senate Judiciary Committee which is where, typically, you see senators asking questions of the nominee, the nominee testifying, going through that vetting process, and ultimately being voted out of the Senate Judiciary Committee and voted on by the entire Senate,” Carter said. “That process could certainly be done, theoretically, by Election Day or before Election Day, but remember, the current Senate, no matter what happens in the election and the current president is the president and the Senate until Inauguration, so Election Day really isn’t a cutoff necessarily. So I think the process is likely to play out over the coming months.”

Regarding the controversy of Senate Republicans attempting to confirm a justice during an election year after refusing to allow President Obama to do so in 2016 after Justice Scalia’s death in February, Carter says he believes the Senate was out of line.

“Two points that I would make there. In my view, Mitch McConnell — when he did that with President Obama and Merrick Garland— was wrong. Period. There was no historical precedent for what he did and it only further politicized the U.S. Supreme Court,” he said. “So I think that was wrong. He shouldn’t have done it. But— and this is important— I don’t think that two wrongs make a right. So this idea that’s being floated now by some in the Senate and by pundits and constitutional experts out there that the Democrats— if they take over control of the Senate and the presidency after the election— should pack the court or add justices to offset and sort of, get back at Mitch McConnell for what he did to Merrick Garland, I think that’s a dangerous road to go down. The Senate should do its job and go through a rigorous vetting process to make sure that the person that ultimately becomes a Supreme Court justice believes in the rule of law and will support the U.S. Constitution to the best of their ability and not make this a political hot potato. That’s a game nobody can win.”

Carter says this isn’t the first time a seat on the Supreme Court has become vacant during an election year.

“There’s, in fact, been nearly two dozen Supreme Court vacancies during a presidential election year in the history of the United States and in 21 of those cases, the Senate, carrying out its constitutional duty, advised and ultimately consented to the nominee and that person became a Supreme Court justice,” he said.

Carter also talked about the future of historic and highly controversial Supreme Court rulings such as Roe v. Wade which, in 1973, granted women the right to abortion. Some women are worried a majority-conservative court would overturn the decision. Carter says he understands that concern but doesn’t believe a reversal is likely.

“If the nominees adhere to principles that, historically, all of the nominees have said they believe in— the principle of precedent— then I think it’s unlikely in the short term that something like Roe v. Wade will be overturned. But is there a possibility that that could happen? I suppose there is. And that’s an important issue,” Carter said. “But I just think the solution to solving those problems isn’t to pack the court of politicize the court. It’s to work through the process that the founders put in place to make sure that we get a Supreme Court justice that adheres to those principles of the rule of law and fidelity to the Constitution. And that means fidelity to precedent. That means not overruling cases that were decided in recent history. And the Supreme Court— this very last term— I think indicated that. So it’s not something that I think is going to be happening next year even if President Trump successfully gets his nominee on the bench or the years after that.”

President Trump said this week that he is committed to choosing a female candidate. He says he plans to announce his pick next week.

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