The Trump administration has drawn some controversy by appointing a Supreme Court Justice less than 90 days away from the presidential election. The president has declared Saturday he will publicly announce his replacement for longstanding Justice Ruth Bader Ginsberg. Many pundits find this move distaste full for two main reasons. First off, this decision is being made only eight days after the passing of Justice Ginsberg. The other concern is Trump selecting a justice within months of an election. Public sentiment seems to be leaning towards allowing the winner of the 2020 election to fill this vacancy. The issue with public sentiment is that it seldomly considers the law of the land. Often is fueled by visceral passions more so than reason.
However, I would be derelict in my duties as an armchair commentator if didn’t voice some criticism of the Trump administration. Let’s face it, even if Trump does not get reelected, filling the vacancy with another conservative justice will contribute positively to his presidential legacy. Help retain a strong right-wing influence even if Joe Biden is elected. Making the action of quickly selecting another justice before the election boldly strategic. Before you dog-pile on trump, just remember this variety of behavior is common among presidents at the end of their term. Prior to Obama leaving office he passed a record-setting number of regulations. Why would any elected official do this? Because they are making a last-ditch effort to implement any agenda focal points that hadn’t been previously enacted. Once you hit the level of President of the United States you are no longer vying for money or power. You are vying for your legacy. Imagine what the paragraphs under your photo in a history textbook will convey. The portrait of a strong leader or that of a half-witted and cowardly buffoon.
The real question should be is it legal for Trump to appoint a new justice this late in the election cycle? Formally, there isn’t anything legally holding him back. The decision of whether to make this selection is more a matter of adherence to social conventions than being a legal matter. Historically, there was only one other instance of a Supreme Court Justice passing away within 90 days of a presidential election. This was the passing of Justice Taney 27 days before the election of 1864. Lincoln opted to delay the appointment until reelection. What most people express precedence dictating that the present should wait until the election is over before appointing a new justice is invoking the Thurmond Rule. This informal and dates back to Senator Thurmond blocking LBJ’s appointment of Abe Fortas to chief justice. When Antonin Scalia passed away in February of 2016 republicans cited the Thurmond Rule in their objection to Obama selecting a new Justice in an election year. Clearing there is nothing legally binding that prohibits Trump from making the appointment.
Considering that Trump’s decision is legal, any concerns are more aimed at him not respecting social conventions. If you are attempting to cultivate a positive public image, being so bold and brash might not be the best strategy. Then again we are discussing a president who ascended to his lofty perch by breaking ties with social conventions. Coincidentally, it has been somewhat effective. Then again, this may have been unique to the peculiarities of the 2016 American culture. Seldom does drifting away from a Nash-Equilibrium strategy ensure success.