21 September 2020
Dear Senator Gardner:
I’m writing to you about whether it would be appropriate to fill the Supreme Court seat left vacant by the death of Justice Ginsberg before the beginning of the next presidential term. I read in the Washington Post that “The Colorado GOP senator said in 2016, after Justice Antonin Scalia died, that “I think we’re too close to the election. The president who is elected in November should be the one who makes this decision.” (https://www.washingtonpost.com/politics/2020/09/18/gop-senators-who-will-decide-ginsburgs-vacancy/ & the link to the original quote in the Denver Post https://www.denverpost.com/2016/02/18/cory-gardner-hardens-stance-on-supreme-court-obama-should-not-pick/ ). I trust that the Denver Post quoted you accurately. But much more importantly, I hope that you made that statement in good faith and with a sincere belief that this was in the best interest of our republic. I know that for me and for millions of other Americans, if the Senate approves a nominee before the inauguration of a new term for President Trump or the beginning of a term for President Biden, it would be a slap in the face to we voters. Further, it would provide additional grounds for Americans to disbelieve whatever any politician says, all to the degradation of our democratic system. Also, as a lawyer, I’m deeply concerned about the legitimacy of the Supreme Court. This type of midnight appointment would further cripple the esteem upon which the legitimacy and efficacy of the Court depends.
American voters were told four years ago by Republicans that even early in an election year, they--the voters--should have a say in the selection by waiting to fill a vacancy until after the beginning of a new presidential term. Now some of your colleagues want to rob the voters of this prerogative because they fear losing power as a result of the upcoming election and hope to maintain control by ramming through a judicial nomination that will be opposed by so many.
While many of your Republican colleagues are doing an about-face, thereby making themselves out to be the more than just typically hypocritical, but downright craven and abject. But not all of them are supporting this rather desperate and shocking grasp at raw power (in the face of what they fear is a sinking ship). I want to point out that your colleague (and my former senator), Charles Grassley, seems to be sticking to his principles. If he continues to do so, along with Senators Collins and Murkowski, you would be in good company. Perhaps others would stand for principle.
In the end, if you and enough of your colleagues choose the high road, it will benefit the Court, the Senate (as an institution), and yourself.
Thank you for your consideration of this matter. I will eagerly watch for your decision.
/s/
Stephen N. Greenleaf