America could face a deep crisis if President Donald Trump does not act to fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg so that the court can be at full strength by Election Day, Republican Sen. Ted Cruz of Texas said Friday.
Ginsburg lost her long-running battle with cancer Friday, dying at the age of 87. Her death impacts the dynamics of a court that is divided along liberal and conservative lines, with Chief Justice John Roberts often holding a middle-to-a-slightly conservative position, but at times siding with the liberal wing.
Ginsburg’s death means that the liberal wing of the court now has three justices.
“We cannot have Election Day come and go with a four-four court,” Cruz said during an interview with Fox News host Sean Hannity.
“I think it is critical that the Senate takes up and confirms that successor before Election Day,” he said, calling on Trump to nominate a successor next week.
Cruz said the court cannot be paralyzed when it is needed.
“A four-four court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested litigation and a contested election,” Cruz said.
Cruz said that the Democratic Party will use a vacancy as part of its plan to undermine the election.
“Democrats and Joe Biden have made clear they intend to challenge this election. They intend to fight the legitimacy of the election. As you know, Hillary Clinton has told Joe Biden ‘under no circumstances should you concede. You should challenge this election,'” Cruz said.
Cruz said that media talking heads and Democrats will push for a delay in hopes that Trump will lose the election and the next court pick will be made by Biden.
“There’s going to be enormous pressure from the media, there’s going to be enormous pressure from the Democrats to delay filling this vacancy. But this election, this nomination is why Donald Trump was elected. This confirmation is why the voters voted for a Republican majority in the Senate,” he said.
Senate Majority Leader Mitch McConnell said in a statement Friday that if Trump makes a nomination, the Senate will do its part.
“Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” McConnell said in the statement. “Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
As of Saturday, it was unclear whether McConnell could count on the full strength of the GOP’s 53-47 majority to confirm a new justice. Confirmation requires a simple majority.
In 2016, McConnell chose not to act on former President Barack Obama’s nomination of Merrick Garland to the court, choosing to wait until after the election.
On Saturday, Trump tweeted, “@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!”
.@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!
— Donald J. Trump (@realDonaldTrump) September 19, 2020
Biden has said he would nominate a black woman to the Supreme Court but has not named names.
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