Did Ruth Bader Ginsburg Say the Senate Was Obligated to Assess Merrick Garland’s Qualifications?

The late Supreme Court justice said in 2016 of court nominee Garland that “nothing in the Constitution” says “the president stops being president in his last year.”

  • Published 23 September 2020

Claim

In a 2016 interview, U.S. Supreme Court Justice Ruth Bader Ginsburg said of the nomination of Merrick Garland to the High Court: “Nothing in the Constitution prevents a president from nominating to fill a court seat. That’s their job. There’s nothing in the Constitution that says the president stops being president in his last year."

Rating

What's True

In a July 2016 interview with The New York Times, Ginsburg responded to a question about whether the U.S. Senate was obligated to assess the qualifications of Judge Merrick Garland for a seat on the High Court. She said: “That’s their job. There’s nothing in the Constitution that says the president stops being president in his last year.”

What's False

Ginsburg did not use the exact words, as one viral meme claimed, “Nothing in the Constitution prevents a president from nominating to fill a court seat.”

Origin

U.S. Election Day is Nov. 3, 2020. Check your state’s vote-by-mail options. Browse our coverage of candidates and the issues. And just keep fact-checking.

In September 2020, following the death of U.S. Supreme Court Justice Ruth Bader Ginsburg, versions of her past quotes circulated widely on the internet.

The sudden vacancy in the country’s highest court had resulted in a race to nominate a replacement, one task U.S. President Donald Trump’s administration and top-ranking Republicans were eager to accomplish before the Nov. 3, 2020 general election.

As Democratic presidential candidate Joe Biden argued that rushing through a confirmation would be an “abuse of power,” Republican Senate Majority Leader Mitch McConnell said that there was “overwhelming precedent behind the fact that this Senate will vote on this nomination this year,” even though back in 2016 he refused to vote on then-President Barack Obama’s Supreme Court pick, Judge Merrick Garland. Ultimately Garland’s nomination went nowhere, but the fight over his confirmation set the tone for the battle over Ginsburg’s successor.

Readers shared a number of graphics claiming that in 2016 Ginsburg had argued that it was the Senate’s “job” to vet the president’s nomination to the Supreme Court, as seen below: 

In the first graphic Ginsburg reportedly said:

Nothing in the Constitution prevents a president from nominating to fill a court seat. That’s their job. There’s nothing in the Constitution that says the president stops being president in his last year.

The second graphic quoted her as only saying: “That’s their job. There’s nothing in the Constitution that says the president stops being president in his last year.”

The second image accurately represented a quote from Ginsburg that originally appeared in a July 2016 interview with The New York Times. At the time, the court was short-handed because of the death of Justice Antonin Scalia, and Ginsburg chastised the U.S. Senate for refusing to act on Obama’s nominee, Garland. She praised Obama’s choice, and in response to a question on whether the Senate had an obligation to assess Garland’s qualifications, “her answer was immediate,” the Times reported. “That’s their job,” she said, “There’s nothing in the Constitution that says the president stops being president in his last year.”

While Ginsburg did say most of the words in the first graphic, she did not say, “Nothing in the Constitution prevents a president from nominating to fill a court seat” as shown in the first graphic. These words were likely taken from the first line of an article in The Daily Caller, a conservative news outlet, which paraphrased her quote.

Right before her death, Ginsburg expressed to her granddaughter that her most “fervent wish” was that she “will not be replaced until a new president is installed.”

Given that most of the quote is correctly attributed to Ginsburg from an interview with The New York Times, we rate this claim as “Mostly True.”