Biden and Trump clash over filling Justice Ruth Bader Ginsburg's Supreme Court seat at the first presidential debate

U.S. President Donald Trump and Democratic presidential nominee Joe Biden participate in their first 2020 presidential campaign debate in Cleveland
Brian Snyder/Reuters Images

Democratic presidential nominee Joe Biden clashed with President Donald Trump during Tuesday's debate over the GOP's efforts to fill Justice Ruth Bader Ginsburg's Supreme Court seat before the election.
Biden argued it's un-democratic to hold hearings and a vote on Judge Amy Coney Barrett, Trump's conservative nominee, while Americans are already voting in this year's election.
Trump claimed he had the right to nominate a justice at any point during his term, including between the election and the inauguration.
"We won the election and therefore we have the right to choose her," Trump said. "I'm not elected for three years, I'm elected for four years."
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Democratic presidential nominee Joe Biden clashed with President Donald Trump during Tuesday's debate over the GOP's efforts to fill Justice Ruth Bader Ginsburg's Supreme Court seat before the election.

Biden argued it's un-democratic to hold hearings and a vote on Judge Amy Coney Barrett, Trump's conservative nominee, while Americans are already voting in this year's election.

"The American people have a right to have a say in who the Supreme Court nominee is and that say occurs when they vote for United States senators and when they vote for the president of the United States," Biden said. "They're not going to get that chance now because we're in the middle of an election already. The election has already started, tens of thousands of people have already voted."

Trump hit back, claiming he has the right to fill a vacancy at any point during his term. Democrats faced backlash when they questioned Barrett's religious beliefs during her 2017 appeals court confirmation hearings. Biden, who is a Catholic, rejected Trump's claim.

"We won the election and therefore we have the right to choose her," Trump said. "I'm not elected for three years, I'm elected for four years."

He added later, "As far as the say is concerned, the people already had their say."

Republicans, led by Senate Majority Leader Mitch McConnell, refused to consider President Barack Obama's nomination of Judge Merrick Garland nearly eight months before the 2016 presidential election. At the time, the Republican-majority Senate argued that it would be wrong to vote on a Supreme Court nominee in an election year. But the party reversed its position after Ginsburg's death on Sept. 18.

No modern-day president has nominated and confirmed a Supreme Court justice this close to a presidential election.

Biden said that Barrett's nomination puts the Affordable Care Act, also known as Obamacare, at risk. The high court is scheduled to hear arguments in the Trump administration's lawsuit seeking to overturn the ACA a week after the general election on Nov. 3.

When asked about ending the filibuster or expanding the Supreme Court, Biden declined to take a firm position but encouraged people make their opinions known at the ballot box. "The American people should speak," he said. "Vote now."

Barrett has publicly disagreed with Chief Justice John Roberts' 2012 opinion upholding the Affordable Care Act and its insurance mandate, arguing that the conservative justice "pushed" Obamacare "beyond its plausible meaning to save the statute" in a 2017 law review article.

Biden pointed out that overturning the ACA would strip tens of millions of Americans of health insurance and eliminate protections for those with preexisting conditions in the middle of a pandemic.

"If it's struck down, what happens? Women's rights are fundamentally changed," he said.

—Anderson Cooper 360° (@AC360) September 30, 2020

A strong majority of Americans support Obamacare and legalized abortion — two issues that will soon come before the Supreme Court.

Recent polling has revealed that the Republican effort to fill Ginsburg's seat before Election Day is unpopular. A solid majority of Americans — 56%, according to a New York Times/Siena poll released on Sunday — believe the winner of the presidential election should fill the Supreme Court vacancy. Just 41% said Trump should fill the seat before the election.

Notably, an even bigger majority of voters the GOP needs to win key Senate races and the presidency are opposed to Trump's efforts to push through the nominee. The Times/Siena poll showed that 63% of independents, 62% of women, and 60% of college-educated white voters think the winner of the election should pick the nominee.

During Trump's first presidential campaign, he listed the names of conservative jurists that he was considering for the Supreme Court, which broke with precedent from past nominees. In many ways, the list helped him galvanize support from conservatives who were wary of his personal behavior and lack of evangelical credentials but agreed with him on filling the federal bench with strict constructionists.

Since Trump has been in office, he has released the names of additional judges whom he would consider for Supreme Court vacancies. Earlier this month, before Ginsburg died of complications from metastatic pancreatic cancer, he updated his list, adding some current federal judges and former government attorneys, as well as Ted Cruz of Texas, Tom Cotton of Arkansas, and Josh Hawley of Missouri, all of whom are senators.

Biden has refused to release any names of potential Supreme Court nominees, saying that such speculation could influence rulings from judges under consideration and also open them up to unfair criticism in the media.

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