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My Constitutional Duty

By Sen. John Thune

September 25, 2020

Ruth Bader Ginsburg served with distinction on the Supreme Court for more than 25 years, and she embraced the law at a time when being a woman meant a constant uphill battle. She was involved in some of the court’s most memorable exchanges and was always able to disagree with her colleagues without indicting their character. Justice Ginsburg could disagree without being disagreeable – a principle that’s always guided my life, too. She will be missed, and my thoughts and prayers are with her family.  

After the nation says its final goodbye to Justice Ginsburg, the Senate will turn its attention to its constitutional duty to provide advice and consent on the president’s nominee. I always take that responsibility seriously, but there’s an added layer of importance when it comes to a Supreme Court nominee.

There has been some criticism that in 2016, the Senate decided it would not confirm President Obama’s nominee to the Supreme Court, but that decision follows longstanding Senate precedent and practice. You’d have to go back to the 1800s to find the last time a Supreme Court vacancy was created and filled during an election year when the Senate majority and White House were controlled by opposite parties. While some people disagreed with our decision, the Senate fulfilled its constitutional responsibilities in 2016 by withholding consent on that nominee.

On the flip side, in all but one case (which involved an ethics scandal and bipartisan opposition), every single Supreme Court nominee who was nominated in an election year when the Senate majority and White House were occupied by the same party was confirmed. I’m by no means predetermining confirmation of President Trump’s nominee, but the precedent for considering her is clear.

I’ve voted on six of the current members of the Supreme Court, and I’ve applied the same standards for each of them as I considered their nominations. I’ve always looked for someone who acts as an umpire and call balls and strikes when it comes to interpreting the law. We cannot have Supreme Court justices legislating from the bench – that’s the job of the Congress. When I meet with her, I will underscore that I believe it’s important for the Supreme Court to apply the law as Congress intended and decide cases with impartiality, free from personal opinions or preferred outcomes.  

Over the last few decades, we’ve seen too many examples of judicial activism and pushing a political agenda from the federal bench, including the Supreme Court. That’s not what our Founders intended.

One of the main reasons many of my colleagues, myself included, ran for the Senate was to be in a position to restore the Supreme Court to its original constitutional purpose as a judicial body, not a legislative one. We ran for this. We were elected for this. Now, we will follow through.