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Joe Biden thinks whoever is sworn in this January should pick Ruth Bader Ginsburg’s replacement

“The voters should pick the president, and the president should pick the justice for the Senate to consider.”

Democratic presidential nominee Joe Biden speaks to reporters about the death of Supreme Court Justice Ruth Bader Ginsburg upon arrival at New Castle County Airport after a trip to Duluth, Minnesota, on September 18, 2020, in New Castle, Delaware. 
Drew Angerer/Getty Images

Democratic presidential candidate Joe Biden told reporters Friday night that he thinks a new Supreme Court justice should not be confirmed to replace the late Ruth Bader Ginsburg until after the November presidential election is held and the president inaugurated.

“There is no doubt — let me be clear: The voters should pick the president, and the president should pick the justice for the Senate to consider,” Biden told reporters following news of Ginsburg’s death. “This was the position the Republican Senate took in 2016 when there were almost 10 months to go before the election. That’s the position the United States Senate must take today, and the election is only 46 days off.”

Biden, the former chair of the Senate Judiciary Committee who oversaw numerous confirmation hearings for US Supreme Court justices — including Ginsburg’s — said that the average confirmation process for a justice takes around 70 days. With the November election fast approaching, Biden said he thinks the Senate must take a pause.

“They should do this with full consideration, and that is my hope and expectation of what will happen,” Biden said.

Senate Majority Leader Mitch McConnell has already made it clear he does not plan to pause, and that whoever President Trump picks to replace Ginsburg will get a Senate floor vote.

“President Trump’s nominee will receive a vote on the floor of the United States Senate,” he said in a statement, though he did not specify when this potential vote is expected to take place.

Given how close the election currently is, it’s possible Republicans could attempt to confirm a new justice before November or conduct the vote during the lame-duck session that Congress will hold later in the year. Even if Trump loses the election in November, or Republicans lose their Senate majority, Biden and a new Congress wouldn’t take over until January, leaving the GOP a window of time when they could act on the vacancy.

McConnell’s position in 2020 is opposite from his stance when President Barack Obama nominated Merrick Garland to the Supreme Court in March 2016. During Garland’s confirmation process, McConnell took the position that a Supreme Court justice should not be confirmed during a presidential election year.

Biden added he learned of Justice Ginsburg’s death aboard a flight from a campaign event in Minnesota.

“It was my honor to preside over her confirmation hearings, and to strongly support her accession to the Supreme Court,” Biden said. “In the decades since, she was consistently and reliably the voice that pierced to the heart of every issue, protected the constitutional rights of every American, and never failed in the fierce and unflinching defense of liberty and freedom. Her opinions, and her dissents, will continue to shape the basis of our law for future generations.”