Tribune. The death of Ruth Bader Ginsburg, forty-five days before the presidential and senatorial elections, constitutes a political earthquake which reveals a triple stake for American institutions. On the side of the Supreme Court, first of all, the issue is ideological. If he obtains the prompt replacement of this progressive judge by a conservative judge – his choice, he announced, will be a woman – Donald Trump risks tipping the balance of the Court heavily. Ambition is old in his camp.
During his second and third presidential terms, Franklin Roosevelt had fashioned a progressive court. Since then, no Republican president has succeeded in carrying out the conservative revolution desired by many, although there were plenty of opportunities: since 1969, only four members of the court have been appointed by Democratic presidents, compared with sixteen by Republican presidents.
The conservative beliefs of Republican candidates often soften after their appointment, which explains the preserved moderation of the jurisdiction: for three decades, its decisions have sometimes satisfied the Republicans, sometimes the Democrats. This may not be the case for some time.
Presidential detention
On the side of the president then, to whom the Constitution attributes the choice of candidates to the Supreme Court, the stakes are strategic. Donald Trump decided to hasten the process, unlike three of his predecessors who, in a similar situation, refrained from acting before the election.
The decision was unfortunate for John Quincy Adams (1767-1848), defeated in 1828: he had to give up to his successor, Andrew Jackson (1767-1845), the replacement of a judge who died sixty-seven days before the poll. It was happier for Abraham Lincoln (1809-1865) in 1864, and Dwight Eisenhower (1890-1969) in 1956, respectively faced with a death twenty-seven days before the election and a resignation twenty-two days earlier. Once re-elected, they were able to calmly propose their candidates.
Does this mean that the Constitution would impose, in these circumstances, presidential restraint? Between the election of a new president and his taking office – a period that was reduced from four months to two and a half months in the mid-1930s – the outgoing president is sometimes compared to a “lame duck” (“Blade duck”). He should refrain from exercising certain powers for the benefit of his successor, who enjoys more recent electoral legitimacy.
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