Ruth Bader Ginsburg, Associate Justice to the United States Supreme Court, died this past Friday after a long fight with pancreatic cancer. Ginsburg, who had been appointed by President Bill Clinton in 1993, was something of a liberal bulwark on the court, having taken up fierce stances on equal rights and abortion. Ginsburg was the second woman in U.S. history to serve on the supreme court. She was 87 years old. 

The Supreme Court is the highest court in the land and has appellate jurisdiction over all state and federal court cases, the power to invalidate legal statues found to be unconstitutional, and the ability to strike down Presidential directives.

But as the nation mourns the passing of such an important stakeholder in our republic politicians are scrambling over who will replace Justice Ginsburg and whether her replacement should be the prerogative of President Trump or the winner of the November Presidential election. While it is the constitutional right of a sitting president to appoint a Supreme Court justice in the final year of their presidency, many politicians and political scientists believe that to do so is unfair to the American people.

In these rare moments in our history, the political consensus has been that the sitting president, who could be elected out of office by the American people in the quadrennial elections, should not be given the opportunity to make an appointment to the court that will shape the outcome of legislation for decades to come. Ultimately, the U.S. Senate is responsible for passing nominations to the court. 

In this case, Senator and majority leader Mitch McConnell could bring President Trump’s nomination to the Senate floor. And with a simple majority vote during a “lame duck” session after the election, the appointee would take the bench. 

But in a year like 2020, it’s no surprise that there’s a twist.

Several influential Senators, among them Lindsey Graham and the majority leader himself, had blocked an Obama appointee in 2016. They had argued that such an appointment should be made by the next president so as to accurately represent the wishes of the American people writ large. 

According to several reports, Senator Graham reversed his position on Saturday, citing the bitter battle surrounding the nomination of Justice Brett Kavanaugh, and the subsequent 50-48 senatorial vote as his reason.