Supreme Court Justice Ruth Bader Ginsburg’s dying wish was that she “[Would] not be replaced until a new president is installed,” although, back in 2016, she argued, “The president is elected for four years not three years” when discussing if President Barack Obama should select a new justice right before the 2016 election. With the Presidential election less than two months away, it is a large constitutional debate whether a justice should be nominated before a winner is announced. However, in typical political style, there are two sides fighting for two different outcomes. As this debate continues, all eyes are on the Presidential candidates for 2020: Donald Trump and Joe Biden. 

President Trump selected Amy Coney Barrett to fill Justice Ginsburg’s seat on the Supreme Court on Saturday, Sept. 26, 2020. If the Senate confirms this nomination, there will be a 6-3 conservative majority on the court. When selecting Barrett, Trump stated she is ‘“a woman of towering intellect… [and] unyielding loyalty to the Constitution… [who would rule] based solely on the fair reading of the law.’” After being selected, Barrett explained to America, “…a judge must apply the law as written. Judges are not policy makers.” Barrett has voiced her conservative stances on issues such as Second Amendment gun rights, immigration, and abortion. Many worry that Barrett’s religious devotion will sway her beliefs in court, but she countered that “If confirmed, I would not assume that role for the sake of those in my own circle, and certainly not for my own sake, I would assume this role to serve you.” Democrats worry that Barrett’s vote on the court could jeopardize the Affordable Care Act, a case which the court is set to hear on Nov. 10. 

It has been continuously debated whether it was right of President Trump to select a justice before the election. When asked about his decision at the first presidential debate, President Trump explained, “…we won the election. Elections have consequences. We have the Senate, we have the White House, and we have a phenomenal nominee.” Most Republicans agree that Trump should have selected a justice before the election, securing the Supreme Court for them. There is no law stating this selection could not occur, and now it is up to the Senate to confirm the President’s nomination. 

In 2016, a similar situation occurred: Justice Antonin Scalia passed before the election. Although, in 2016, the situation was flipped, as were many people’s opinions on the issue. Many Democrats, who now believe the next Supreme Court justice should be selected by the candidate who wins the election, believed in 2016 that President Obama should select the new Supreme Court justice before the election. Republicans who urged to wait until after the election in 2016 now believe Trump should select a justice right away. Both Republican Senate majority leader Mitch McConnell and Democrat Senate minority leader Chuck Schumer have commented on their feelings about this decision. McConnell stated,  “the American people are about to witness an astonishing parade of misrepresentations about the past, misstatements about the present, and more threats against our institutions,” and Schumer commented, “[the Republicans] have made a mockery of their previous position.” 

The Democrats and Biden were very vocal about waiting to nominate a Supreme Court justice until after the 2020 election. Biden shared his reasoning for this: “Just so there is no doubt, let me be clear: The voters should pick a president and that president should pick the justices for the Senate to consider.” He and the Democrats have repeatedly called the action of nominating a justice “unconstitutional.” This is contradictory to Biden’s previous view: “I know there is an argument that no nominee should be voted on in the last year of a presidency, but there is nothing in the Constitution—or our history—to support this view.” In contrast to this previous view, when President Trump selected Barrett on Saturday, Biden expressed his concerns: “Supreme Court decisions affect our everyday lives, and the Constitution was designed to give voters a voice on who makes those decisions. The Senate shouldn’t act until after the American people select their next president and the next Congress.” This decision comes 38 days before election day; 38 days for the Senate to get the nominee through. Many Democrats argue that the situation now is different than it was in 2016, as then, President Obama nominated a Supreme Court justice in March. Biden and the Democrats are hoping that they win the election, and then select a Justice once inaugurated. To them, this is the most Constitutional decision because it would mean that the people who elect the President will make the crucial decision of selecting a justice. 

However, this selection has been made legally by President Trump, and now it is time to find out: will the Senate confirm the nomination of Amy Coney Barrett to serve on the Supreme Court?