In Brief

US Supreme Court: can Ruth Bader Ginsburg be replaced before the election?

Death of the legal, cultural and feminist icon has triggered row over who should succeed her - and when

US President Donald Trump has announced that he will nominate a woman to replace Ruth Bader Ginsburg, escalating the row over the Supreme Court justice’s successor. 

Ginsburg died from pancreatic cancer at the age of 87 on Friday, just weeks before the US election. Democractic presidential candidate Joe Biden has argued that no decision on her replacement should be made until after the vote.

As the BBC notes, “the ideological balance of the nine-member court is crucial to its rulings on the most important issues in US law” - so the outcome of Trump’s bid to have his say will have far-reaching consequences. 

Can Trump replace her before the vote?

In short, yes. But the longer answer is that it is a time-consuming process that will be fraught with disputes.

Trump and his party “are expected to move swiftly on filling the High Court vacancy”, says USA Today, but “the process takes time - typically at least two months, based on recent nominations”. 

The Time’s US editor David Charter writes that the average time is 67 days - while only 44 days remain until the November election.

“The nomination has to be agreed by a majority vote in the Senate”, which the Republicans control, but “before that the nominee has to undergo confirmation hearings”, Charter writes. “The danger for the Republicans is that a vote before the poll may expose vulnerable candidates and put the party’s control of the Senate at risk.”

Who could replace her?

The Financial Times says that “a leading candidate to replace Ginsburg” is Amy Coney Barrett, who Trump appointed to the US Court of Appeals for the Seventh Circuit in 2017. Axios reported last year that the president was “saving her” for Ginsburg’s seat.

Also believed to be in the running are Barbara Lagoa, the first Hispanic woman to serve on the Florida Supreme Court, and Britt Grant, who the FT says is “close to” the president’s second Supreme Court appointee Brett Kavanaugh. 

Other possibles include Joan Larsen, a long-time associate of Conservative legal icon Antonin Scalia, and Allison Eid, who has served on the Court of Appeals for the Tenth Circuit since 2017.

Why the controversy?

Ginsburg served on the Supreme Court for 27 years and was one of only four liberals on the nine-seat bench. Should the Republicans get the vote through, “the balance of power would shift decisively towards the conservatives”, the BBC says.

Trump is “well aware that getting his nominee in would give conservatives control over key decisions for decades to come”, the broadcaster adds, which is why Biden has been so quick to condemn any effort to rush through the president’s favoured pick.

Ginsburg made her feelings clear in the days before her death, writing in a statement to her granddaughter that her “my most fervent wish is that I will not be replaced until a new president is installed”, National Public Radio reports.

Whether she will get her final wish remains to be seen.

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