Sen. Ted Cruz (R-TX) blocked a resolution honoring the late Justice Ruth Bader Ginsburg that was amended by Democrats to include reference to — and support for — Ginsburg’s “dying wish” that the Supreme Court vacancy not be fulfilled until the next president takes office.
Senate Republicans originally proposed a resolution in commemoration of Ginsburg stating that the Senate “acknowledges the lifetime of service of Ruth Bader Ginsburg to the United States as a trail blazing attorney, acclaimed scholar, brilliant jurist, and [one] of the most notable and influential justices ever to serve on the Supreme Court of the United States.”
However, Senate Minority Leader Charles Schumer (D-NY) proposed an amended resolution that referenced one of Ginsburg’s last statements as reported by NPR.
“Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: ‘My most fervent wish is that I will not be replaced until a new president is installed,’” reads the NPR article published on Friday after Ginsburg’s death.
“Republicans came to us with this resolution,” said Schumer on the Senate floor, “but it ignored Justice Ginsburg’s dying wish, what she called her most fervent wish, that she not be replaced until the new President is installed. We simply have added to the exact same text of the resolution the Republicans gave us.”
The amended resolution added two new sections related to Ginsburg’s purported wish.
First, it added a preambulatory clause recognizing the justice’s statement as quoted by NPR.
Despite omission from reports by Texas legacy media outlets, the Democrats’ resolution also included an operative clause asserting the Senate honor “Ruth Bader Ginsburg’s dying wish that she should not be replaced until a new president is installed.”
As with the Supreme Court vacancy in 2016 following Justice Antonin Scalia’s death, Democrats and Republicans are now at odds over filling the vacancy prior to the presidential election.
And as in 2016, the issue has been highly politicized, though Republicans — including Cruz — are now arguing for the vacancy to be filled as soon as possible and Democrats want to wait until after the election.
“The Democratic leader wants to add a statement that Justice Ginsburg’s position should not be filled until a new president is installed,” said Cruz. “That, of course, is not the standard. Under the Constitution, members of the judiciary do not appoint their own successors. No Article III judge has the authority to appoint his or her own successor. Rather, judicial nominations are made by the President of the United States, and confirmations are made by this body, the U.S. Senate.”
In his floor speech, Cruz recognized that Ginsburg “led an extraordinary life” and was “one of the finest Supreme Court litigators to have ever practiced.”
He also pointed out a statement from a 2016 Washington Post article wherein Ginsburg reportedly argued for Scalia’s replacement to be appointed before the election, saying, “The president is elected for four years not three years, so the power he has in year three continues into year four.”
As Cruz had noted before, he said that historically when a vacancy occurs during an election year and the White House and Senate are both controlled by the same party, a justice is typically nominated and confirmed. When the White House and Senate are controlled by different parties, a nomination is usually made but not confirmed.
“The president has said he’s going to nominate a justice this week, that’s the right thing to do. And this body, I believe, will take up, will consider that nomination on the merits. And I believe we will confirm that nominee before Election Day. That is consistent with over 200 years of Senate precedent from both parties,” said Cruz.
Cruz proposed to replace Ginsburg’s statement about waiting on a new Supreme Court nominee with another statement Ginsburg provided to NPR.
“Nine seems to be a good number,” said Ginsburg in the 2019 interview. “It’s been that way for a long time. I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
Schumer, who was attempting to move his amended resolution through the Senate by way of unanimous consent, declined to modify the resolution and remove Ginsburg’s reported “dying wish.”
“I believe Justice Ginsburg would have easily seen through the legal sophistry of the argument of the junior Senator from Texas. To turn Justice Ginsburg’s dying words against her is so, so beneath the dignity of this body,” said Schumer.
On Monday, the House of Representatives passed a simply-worded resolution expressing condolences on Ginsburg’s death.
Also on Monday, the Senate passed a bipartisan concurrent resolution to provide use of the Capitol catafalque for Ginsburg to be lain in state at the Capitol.
The resolution as amended by Schumer can be read below.
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Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.