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GOP should follow its precedent, await voter choice before filling RBG vacancy

As an attorney, a federal judge, and since 1993 as a U.S. Supreme Court justice, Ruth Bader Ginsburg took the position that the U.S. Constitution provided for the equal treatment of all. Women, in particular, but also people with disabilities, minority groups, and same-sex couples saw their rights expanded due to her work and her constitutional rulings.

Writing the opinion in the 1996 Supreme Court case that struck down the Virginia Military Institute’s ban against admitting women, Ginsburg stated that the Constitution provided Americans the guarantee of "equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities."

Conservative jurists, who dominated during much of Ginsburg’s time on the bench, take a different view: only rights explicitly spelled out in the text of the Constitution are protected, with all else left to elected legislators — such as defining marriage, whether to mandate gender equality, or setting abortion restrictions.

Even when out voted by her fellow justices, Ginsburg’s dissents could be blistering, in one case igniting the spark that led to the enactment of the Lilly Ledbetter Fair Pay Act of 2009, reversing a Supreme Court decision that had blocked working women from suing for equal pay and benefits due to arbitrary time limits to file.

Justice Ruth Bader Ginsburg, 87, died Friday due to metastatic pancreatic cancer. RBG may well have been the most popular Supreme Court justice in the nation’s history.

With her death approaching and a presidential election about six weeks away, Ginsburg reportedly told her granddaughter, “My most fervent wish is that I will not be replaced until a new president is installed.”

It is a sentiment with which many in the Republican-controlled Senate should agree. Because many of them were there in February 2016 when Justice Antonin Scalia died. They took the position, though the presidential election was then nine months away, that the position should not be filled until after the next president was sworn in. They refused to even hold a hearing for President Obama’s choice, Merrick Garland.

This editorial board disagreed with that position. With an election so far off, Garland’s nomination should proceed and the vacancy be filled, we argued. Republicans chose a different precedent.

Now, however, they sing a different tune. With an election much closer, they call to rush forward to fill the vacancy. The American people recognize this hypocrisy, this exertion of pure political power over any principle.

But don’t take it from us. Let the words of the Republican senators themselves make the case.

In 2016, Senator Majority Leader Mitch McConnell stated: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”

Today, McConnell states: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

In 2016, in blocking Obama’s nominee, Sen. Tom Cotton of Arkansas said, “In a few short months, we will have a new president and new senators who can consider the next justice with the full faith of the people. Why would we deny the voters a chance to weigh in on the make-up of the Supreme Court?”

Now Cotton says, “The Senate will exercise our constitutional duty. We will move forward without delay.”

In 2016, Sen. Lindsey Graham, S.C., explained why it was so important to ignore Obama’s nominee: “I strongly support giving the American people a voice in choosing the next Supreme Court nominee by electing a new president. I hope all Americans understand how important their vote is when it comes to picking a new Supreme Court justice. The American people should choose wisely this November.”

In 2018, Graham promised to be true to his convictions. “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election.”

He lied. “I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg,” Graham tweeted.

Or take Sen. Ted Cruz of Texas. In 2016: “This should be a decision for the people. Let the election decide.” And today: “I think it is critical that the Senate takes up and confirms that successor before Election Day.”

And the sad list goes on.

Perhaps enough Republican senators will act with integrity and stop this hypocritical act. If not, on Nov. 3 Republicans could well pay a heavy political price for such shameless duplicity.

The Day editorial board meets regularly with political, business and community leaders and convenes weekly to formulate editorial viewpoints. It is composed of President and Publisher Tim Dwyer, Editorial Page Editor Paul Choiniere, Managing Editor Tim Cotter, Staff Writer Julia Bergman and retired deputy managing editor Lisa McGinley. However, only the publisher and editorial page editor are responsible for developing the editorial opinions. The board operates independently from the Day newsroom.

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