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Joe Biden says the election winner should appoint a new justice, calling on G.O.P. senators to defy their leadership.
Joe Biden on Sunday urged Republicans not to “jam” a Supreme Court nominee through the Senate before the presidential election, suggesting that such a move would amount to an “abuse of power,” in his first extensive remarks on the battle to fill the vacancy left by the death of Justice Ruth Bader Ginsburg.
In a speech delivered at the National Constitution Center in Philadelphia, Mr. Biden, a former vice president and the current Democratic presidential nominee, appealed directly to the “handful” of pivotal Senate Republicans “who really will decide what happens” to “follow your conscience,” wading head-on into a matter that many political observers believe has the power to define the final weeks of the presidential race.
“If Donald Trump wins the election, then the Senate should move on his selection and weigh the nominee he chooses fairly,” he said. “But if I win this election, President Trump’s nominee should be withdrawn. As the new president, I should be the one who nominates Justice Ginsburg’s successor, a nominee who should get a fair hearing in the Senate.”
President Trump has vowed to nominate a woman for the position in the next week, seizing on an issue that has the potential to electrify the bases of both political parties and to inject a new measure of uncertainty into the presidential race. The election is little more than six weeks away.
Justice Ginsburg was “a righteous soul,” Mr. Biden said. “She was proof, proof that courage and conviction and moral clarity can change not only the law, but can change our culture, can change the world.”
His remarks come as he and other Democrats seek to frame the Supreme Court vacancy battle as one defined, above all else, by the issue of health care amid a global pandemic.
They are casting their arguments in particular around protecting the Affordable Care Act, which Justice Ginsburg had voted to uphold, and its guarantee of coverage for people with pre-existing conditions. The Supreme Court is set to hear arguments a week after Election Day in a case that could determine the future of the health law.
Even before Justice Ginsburg’s death, Mr. Biden and other Democratic candidates had been emphasizing health care, hoping for a repeat of the success that Democratic House candidates found in the 2018 midterm elections when the party won control of the chamber.
For months, Mr. Biden had sought to make the election a referendum on Mr. Trump’s management of the pandemic and its economic fallout. Over the weekend, Democrats began to link that message to the courts, arguing that the coronavirus crisis makes the issue of health care protections all the more urgent.
Lisa Murkowski becomes the second Republican Senator to oppose taking up the nomination before the election.
A second Republican senator came out against taking up a Supreme Court nomination before the election, potentially complicating Republican efforts to let President Trump swiftly fill the vacancy left by the death of Justice Ruth Bader Ginsburg.
Senator Lisa Murkowski, Republican of Alaska, said in a statement on Sunday that she would not support confirming a Supreme Court nominee before Election Day. Having objected to filling the vacancy left by the death of Justice Antonin Scalia in 2016, she said she believed “the same standard must apply” less than two months before the presidential election.
“For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election,” Ms. Murkowski said in a statement. “Sadly, what was then a hypothetical is now our reality, but my position has not changed.”
“I did not support taking up a nomination eight months before the 2016 election to fill the vacancy created by the passing of Justice Scalia,” she said in the statement. “We are now even closer to the 2020 election — less than two months out — and I believe the same standard must apply.”
Senator Susan Collins, Republican of Maine, on Saturday said not only that the Senate should not vote on a nominee before the election, but that the victor in the presidential election on Nov. 3 should fill the vacancy.
But another moderate senator, Lamar Alexander of Tennessee, a retiring Republican considered by many to be a strong defender of Senate traditions, on Sunday joined the growing ranks of Republicans in support of confirming Mr. Trump’s pick.
“No one should be surprised that a Republican Senate majority would vote on a Republican president’s Supreme Court nomination, even during a presidential election year,” Mr. Alexander said in a statement. “The Constitution gives senators the power to do it. The voters who elected them expect it.”
Ms. Murkowski’s stance against a vote ahead of the November election was striking, particularly given signals from the White House that the administration hopes to nominate someone for the position in the coming days.
It remains unclear, however, whether Senator Mitch McConnell of Kentucky, the majority leader, will hold a vote on a Supreme Court nominee before November, though on Friday he vowed that the Senate would vote on Mr. Trump’s nominee.
With Ms. Murkowski and Ms. Collins both publicly voicing their objections to such a timeline, Mr. McConnell can only afford to lose the support of two more Republican senators.
The next justice “will be a woman,” Trump declares.
Justice Ruth Bader Ginsburg had said that her “most fervent wish” was that she not be replaced before a new president took office. President Trump has vowed to fill the vacant Supreme Court created by her death “without delay, and said that he would choose a woman.
“I will be putting forth the nominee next week; it will be a woman,” Mr. Trump told supporters at an outdoor rally on Saturday, at an airport in Fayetteville, N.C. “I actually like women much more than I like men.”
Mr. Trump has yet to name his choice, but he identified two women as candidates in a telephone conversation on Friday night with Senate Majority Leader Mitch McConnell, according to two people familiar with the call.
Judges Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit in Chicago and Barbara Lagoa of the U.S. Court of Appeals for the 11th Circuit in Atlanta were the women Mr. Trump mentioned. Here is what we know about them.
Judge Amy Coney Barrett
“She’s very highly respected. I can say that,” Mr. Trump said on Saturday.
She was confirmed by the Senate along largely partisan lines, after she was grilled at her nomination hearing by Democrats on how her religious beliefs might influence her judicial thinking. The moment made her something of a hero to religious conservatives, and Ms. Barrett told the senators that her religious beliefs would not affect her decisions as an appellate judge.
In that hearing, she would “have no interest in” challenging the Supreme Court precedent in Roe v. Wade, which legalized abortion. But in a 2016 panel discussion, Judge Barrett, who is a favorite of anti-abortion conservatives, said she could envision the scope of abortion rights changing.
A native of New Orleans, Judge Barrett, 48, graduated magna cum laude from Rhodes College in Memphis with a degree in English literature, and was selected by the faculty as the most outstanding graduate in the college’s English department.
She collected a string of accolades at Notre Dame Law School, where she served as executive editor of the Notre Dame Law Review before graduating in 1997.
After her law school graduation, she clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Justice Scalia. In 2002, she joined the Notre Dame faculty as a professor of law.
When Justice Scalia died, Judge Barrett said that “all jobs have been downhill” since her time clerking for him. She admired Justice Scalia’s friendship with Justice Ginsburg, formed in spite of their philosophical and political differences, adding, “he had great respect for those whose principles were different from his own.”
She shares the originalist views of Justice Scalia, contending that judges should conserve the meaning of the Constitution as it was written. She wrote in a 2013 Texas Law Review article that a justice’s duty is to “enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it.”
Judge Barbara Lagoa, a Cuban-American, was the first Hispanic woman to serve on the Florida Supreme Court and left on her appointment to the federal appellate court in 2019, after being nominated by President Trump.
Judge Lagoa is from Hialeah, Fla., and attended Florida International University, where she majored in English and graduated cum laude. She then went to law school at Columbia University and became an associate editor of Columbia Law Review.
Judge Lagoa, 52, practiced both civil and criminal law before joining the bench and worked on commercial litigation, including employment discrimination, at law firms in Miami including Greenberg Traurig. She was also a member of the Florida Association for Women Lawyers.
She became a federal prosecutor in 2003, joining the United States Attorney’s Office for the Southern District of Florida, where she worked in the civil, major crimes and appellate sections.
She began her judicial career in 2006, when Gov. Jeb Bush appointed her to Florida’s Court of Appeals for the Third District. She heard more than 11,000 cases and issued more than 470 written opinions, before she was picked by Gov. Ron DeSantis to join the state’s Supreme Court, where she served for 11 months.
“She has been the essence of what a judge should be” Mr. DeSantis said in 2019 when he chose Judge Lagoa for the state’s high court. “She understands the rule of law, how important that is to a society.”
Earlier this month, she joined a majority opinion ruling that people with felony criminal records in Florida were ineligible to vote unless they had paid all their outstanding court fines and fees. Critics say the decision disenfranchised hundreds of thousands of people.
Women grieve the loss of an elder stateswoman of feminism.
Women are grieving the death of Justice Ruth Bader Ginsburg — a “particular form of grief” quite separate from the politics surrounding her death.
The second woman to serve on the Supreme Court and a powerful advocate for women’s rights, Justice Ginsburg inspired many women to pursue careers in male-dominated fields or to become organizers and activists. Sheryl Gay Stolberg of The New York Times writes of the meaning of Justice Ginsburg’s death:
It was also the loss of an elder stateswoman of feminism, a powerhouse octogenarian who had become an unlikely icon to women of all ages, and especially the millennial set. For many women, and many girls, it was also a deeply personal loss.
Fern Pasternak, a 23-year-old accounting student in New York, carries her Notorious R.B.G. tote bag — the one with the bespectacled justice wearing the white lace “dissent” collar that she adopted to bring her judicial robe a touch of femininity, and a crown sitting cockeyed on her head — on the Long Island Rail Road as she commutes from her home in Wantagh to Manhattan, where she attends Baruch College.
She holds up Justice Ginsburg as the kind of professional woman she wants to be.
“Once I graduate I will be working at a big accounting firm and those companies especially have had so many issues with gender diversity and women not having positions of power, and women being shut down by men,” Ms. Pasternak said. “I don’t want to be another story. I want to be the story of a person who stands up to that oppression or that bias.”
Lindsey Graham invited people “to use my words against me” if he changed positions. He did, and they are.
“I want you to use my words against me,” Senator Lindsey Graham, Republican of South Carolina, said bluntly in 2016. “If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”
His scenario came true: A Republican did win the 2016 presidential election, and a vacancy did just occur in the last year of his first term.
But Mr. Graham, who oversees the Senate Judiciary Committee and would preside over any confirmation hearing, now says he sees no reason to wait for the next president.
“Being lectured by Democrats about how to handle judicial nominations is like an arsonist advising the Fire Department,” he wrote on Twitter on Sunday. “Democrats chose to set in motion rules changes to stack the court at the Circuit level and they chose to try to destroy Brett Kavanaugh’s life to keep the Supreme Court seat open. You reap what you sow.”
And that has led others to take Mr. Graham up on his call to use his words against him. The Lincoln Project shared a new ad on Twitter, adding: “Lindsey said he wants us to use his words against him. Ok, done.” The ad includes video of Mr. Graham making his statements.
Mr. Graham, a loyal Trump ally who is locked in a tight race against Jaime Harrison in South Carolina, cited the Democrats’ decision to eliminate the 60-vote threshold for most judicial nominees as a reason he had changed his position — though they made that change in 2013, long before he spoke out against a president filling a vacancy in the last year of a term.
In 2018, days before Justice Brett Kavanaugh was confirmed by the Senate and sworn in, Mr. Graham said again, “If an opening comes in the last year of President Trump’s term and the primary process has started, we will wait to the next election.”
His opponent, Mr. Harrison, wrote on Twitter on Saturday that Mr. Graham had proved his “word is worthless.”
“When people show you who they are, believe them,” he said. “Lindsey Graham has shown us that he’s running for political power.”
Abortion issue energizes the base of both sides, but it carries political risks.
The debate over abortion rights has been reignited in the 2020 presidential race after the death of Justice Ruth Bader Ginsburg. With six weeks to go before Election Day, the candidates could be forced to discuss an issue that has significant political risk to both sides.
Traditionally, abortion has served as a powerful source of political motivation for social conservatives, many of whom are single-issue voters who see the issue as nonnegotiable. But some Democrats believe the political balance has shifted, pointing to the outcry against the deluge of restrictive new laws passed by Republican state legislatures last year and the emergence of female voters as the backbone of the opposition to Mr. Trump.
Mainstream views on abortion are more moderate than those of the activists on either wing, with most Americans saying that abortions should be legal with some restrictions. An all-out fight over abortion could further alienate the more moderate suburban voters both sides are competing for.
Republican and Democratic lawmakers weigh in on succession plans.
Most Senate Republicans on Sunday defended their plans to seat a nominee chosen by President Trump in a presidential election year, while their Democratic counterparts called for a delay.
“No one should be surprised that a Republican Senate majority would vote on a Republican president’s Supreme Court nomination, even during a presidential election year. The Constitution gives senators the power to do it. The voters who elected them expect it,” Senator Lamar Alexander, Republican of Tennessee, said in a statement.
“For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election. Sadly, what was then a hypothetical is now our reality, but my position has not changed,” Senator Lisa Murkowski, Republican of Alaska, said in a statement.
“I believe the right thing to do is for the Senate to take up this nomination and to confirm the nominee before Election Day,” Senator Ted Cruz, Republican of Texas, said on “This Week” on ABC.
“What we’re proposing is completely consistent, completely consistent with the precedent,” Senator John Barrasso, Republican of Wyoming and a member of Senate leadership, said on “Meet the Press.”
“The Senate majority is performing our constitutional duty and fulfilling the mandate that voters gave us in 2016 and 2018,” Senator Tom Cotton, Republican of Arkansas and one of the names on Mr. Trump’s short list for the open seat, said on “Fox News Sunday.”
“They set this precedent. They can’t mess around.” Senator Amy Klobuchar, Democrat of Minnesota, said on CNN’s “State of the Union.”
“For the Republican majority to push through a new justice in a partisan confirmation process will further divide our country, will further challenge the legitimacy of the court, and I think would dishonor Justice Ginsburg’s legacy,” Senator Chris Coons, Democrat of Delaware, said on “Fox News Sunday.”
Mourners pay tribute outside the Supreme Court as Justice Ginsburg’s chair is draped in black.
The death of Justice Ruth Bader Ginsburg has continued to spur an outpouring of respect, with many mourners visiting the steps of the Supreme Court well into the weekend.
Outside the court’s steps were an abundance of flowers, posters and personal notes dedicated to a justice many considered a trailblazer.
On Sunday, the Supreme Court had announced Justice Ginsburg’s seat was draped in black wool crepe — a tradition the court has followed for more than 100 years following the death of a justice. A black drape also was placed over the courtroom’s door.
Flags on the court’s plaza will fly half-staff for 30 days, according to a news release.
House Speaker Nancy Pelosi visited the court Sunday morning, laying down a bouquet of flowers in honor of Justice Ginsburg.
For Brooklynites, Justice Ruth Bader Ginsburg’s death has meant the loss not just of a national icon but a beloved daughter. Justice Ginsburg, known as Kiki to her Brooklyn family, was raised in the borough’s synagogues and public schools.
As news spread of her death this weekend, makeshift memorials of candles and flowers went up outside her childhood home. Gov. Andrew M. Cuomo announced on Saturday that the state would erect a statue in her honor in Brooklyn.
John Leland of The New York Times describes why Justice Ginsburg is so revered on her home turf:
Ruth Bader Ginsburg was a child of Brooklyn long before she was Notorious — daughter of Jewish immigrants, graduate of P.S. 238 and James Madison High School (class of 1950), cheerleader known as Kiki Bader, member of the East Midwood Jewish Center.
She lived on the first floor of a two-story house on East Ninth Street in the multiethnic Midwood neighborhood and fed her mind at the local public library branch, upstairs from a Chinese restaurant and a beauty parlor.
“She’s part of the folklore of the community,” said Joseph Dorinson, who lives in the neighborhood and has taught at James Madison. “My neighbor’s brother dated her.”
The meaning in Ruth Bader Ginsburg’s collars.
Vanessa Friedman, the chief fashion critic of The New York Times, writes:
They signaled her positions before she even opened her mouth, and they represented her unique role as the second woman on the country’s highest court. Shining like a beacon amid the dark sea of denaturing judicial robes, Justice Ginsburg’s collars were unmistakable in photographs and from the court floor.
Though obviously Justice Ginsburg’s legacy of jurisprudence is her most important gift to history, her understanding of her own significance as a role model was undeniable. As the rare female law student (and student in the rarefied air at the top of the class) — not to mention the rare female lawyer — she was used to being the only one. She knew that every statement she made, every gesture, every image, would be noted, picked over and parsed. All her choices mattered. So she might as well imbue them with meaning.
Reporting was contributed by Katie Glueck, Thomas Kaplan, Gregory Schmidt, Gillian Friedman, Allyson Waller, Vanessa Friedman, Michael Cooper, Emily Cochrane, Reid J. Epstein, Carl Hulse, Annie Karni, Aishvarya Kavi, Adam Liptak, Jeremy W. Peters, Marc Santora, Anna Schaverien and Matt Stevens.