U.S. Sen. Cory Gardner, a Republican running for reelection in Colorado, prayed for the family of the late U.S. Supreme Court Justice Ruth Bader Ginsburg on Friday night but gave no indication if he will vote to fill her vacancy with a nominee of Republican President Donald Trump either before the Nov. 3 election or in his lame-duck presidency if Trump loses.
In 2016, Gardner supported waiting until after the presidential election to fill the vacancy on the court created by the death of Antonin Scalia when then President Barack Obama, a Democrat, nominated Merrick Garland to replace Scalia on March 16 – seven and half months before the November election. There are just 45 days until the 2020 election.
Gardner’s Democratic opponent in this year’s election, former Colorado Gov. John Hickenlooper, issued this statement Friday night: “The Senate must not confirm a new Supreme Court Justice until after a new President is sworn in next year. Senator Gardner must uphold the commitment he set more than four years ago and allow the President elected in November to make this decision.”
Here’s Gardner’s full statement on March 16, 2016, when Garland was nominated:
“We stand at a pivotal point in our nation’s history. The Obama Administration continues to use the judicial and regulatory systems to push through its legislative agenda, shifting the balance of power that our Founders established. That is why the next president of the United States should have the opportunity to fill the vacancy on the Supreme Court. In 1992, even then-Senator Joe Biden stated the Senate should not hold confirmation hearings for a Supreme Court nominee until after that year’s presidential election. Our next election is too soon and the stakes are too high; the American people deserve a role in this process as the next Supreme Court Justice will influence the direction of this country for years to come.”
Democrat Joe Biden, vice president during the Obama administration, is running against Trump in hopes of making the Republican a one-term president. Presidents nominate Supreme Court justices and the Senate confirms them for lifetime appointments.
“Let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg,” Biden tweeted Friday.
Trump, who won in a Election Day surprise in 2016, has placed two conservative justices on the high court – including Colorado’s Neil Gorsuch (who filled Scalia’s seat) and the controversial Brett Kavanaugh.
Trump tweeted Saturday morning: “We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!”
Senate Majority Leader Mitch McConnell said on Friday, “President Trump’s nominee will receive a vote on the floor of the United States Senate,” but he did not indicate if that vote would occur before the Nov. 3 election or in a possible lame-duck presidency between Nov. 4 and Inauguration Day on Jan. 20, 2021, even if Trump loses.
McConnell was the Senate Majority Leader when the upper chamber refused to hold a hearing on Obama’s nominee, Garland. And because of that some Democrats want to consider “packing the court,” or adding justices to allow Biden to nominate more liberals or moderates if he’s elected and Democrats regain control of the Senate – making the Gardner-Hickenlooper race all the more crucial.
There are currently eight justices on a nine-justice Supreme Court, but that number can be changed by an act of Congress with the signature of the president, and throughout U.S. history there have been as few as six justices and as many as 10.
Colorado Attorney General Phil Weiser, a Democrat who clerked for Ginsburg and Justice Byron White (also from Colorado), offered his thoughts on Kavanaugh and the liberal-conservative split in a 2018 interview with RealVail.com. Another conservative nominated by Trump would give that bloc a solid 6-3 majority.
“I am concerned about Kavanaugh’s influence on a court that is on the far right,” Weiser said at the time. “The Supreme Court at its best is an institution that has [Anton] Scalia’s mindset, [Ruth Bader] Ginsburg’s mindset and everything in between. Right now, what we’re facing is a court that is pulled to the far right so that on matters like Roe versus Wade the case is going to be hardwired before it even gets decided. That is also a real threat that Kavanaugh poses.”
State Rep. Dylan Roberts, a Democrat who represents Eagle and Routt counties in Denver, put the issue in the context of the Affordable Care Act and its increasingly popular protections for people with pre-existing conditions, especially during a global pandemic that has now claimed more than 200,000 American lives.
“The Affordable Care Act has lost its 5-4 vote at the Supreme Court. The ACA is before the Court in November,” Roberts tweeted. “If @SenCoryGardner and GOP Senators *actually* care about protecting people w/ pre-existing conditions, will they only approve someone who will uphold the ACA?”
Hickenlooper has ripped Gardner for “government malpractice” for voting repeatedly to repeal the ACA without replacing it with a real proposal that protects people from being denied coverage for pre-existing conditions, calling a recent Gardner bill that doesn’t actually compel insurance companies to provide coverage “a lie.”
Gardner’s campaign did not return an email requesting comment on Saturday.
Hickenlooper’s campaign on Saturday accused Gardner of “already ducking and dodging questions on whether he’ll adhere to the standard he set for himself in 2016 and allow the President elected in November to appoint the next U.S. Supreme Court Justice who will decide the fate of the Affordable Care Act.”
Hickenlooper also sent out this statement:
“Justice Ginsburg was a key vote for upholding the Affordable Care Act and protecting health care for millions of Americans. Health care was already on the ballot this election, but now the stakes are even higher — and Senator Gardner is still lying about where he stands. If Senator Gardner actually wanted to protect coverage for the 2.4 million Coloradans with pre-existing conditions, he would call on Trump to drop his dangerous lawsuit and let the next President pick a Supreme Court nominee who will follow in Justice Ginsburg’s footsteps and protect access to affordable health care.”
The Supreme Court is set to hear arguments in a Republican-led lawsuit to repeal the ACA on Nov. 10 — one week after the presidential election. If SCOTUS finally does away with the 2010 law, it’s estimated more than 23 million Americans will lose health insurance coverage and many millions more, who’ve lost employer-based coverage during the COVID-19 pandemic and economic collapse, won’t have the ACA as a lower-cost alternative that can’t deny coverage for pre-existing conditions such as COVID-19.
Besides reliably protecting challenges to the ACA, Ginsburg was also an ardent champion of women’s reproductive rights. Gallup polling shows the majority of Americans (50 percent) feel abortion should be legal under certain circumstances, with nearly 30 percent saying abortion should be legal under any circumstances, and just 18 percent saying abortion should never be legal under any circumstances.
An early frontrunner to replace Ginsburg is Amy Coney Barrett, a devout Catholic the Washington Post describes as fervently antiabortion.
In Colorado, voters have repeatedly rejected so-called “Personhood” amendments seeking to define life as starting with “the beginning of the biological development” of a human being – in other words, the fertilized egg as a person. Gardner, who beat incumbent Democrat Mark Udall by just 1.9% of the vote in 2014, covered up and switched his previous support for the Personhood amendments in order to narrowly defeat Udall.
Udall took a great deal of heat for focusing intensely on protecting a woman’s right to choose – earning the mocking nickname of Mark “Uterus”, but his focus on the issue — given Gardner’s current position as a possible swing vote on whether Trump’s next choice will join the high court — seems prescient now.
Gardner’s extreme views have been overwhelmingly defeated at the ballot box in Colorado, where the issue of abortion – and more importantly women’s reproductive rights and the ability to choose how to handle very personal health care decisions – was decided long ago.
“I’m pro-life, but that’s up to the states,” Gardner said last year of an Alabama ban and the growing list of red states trying to outlaw a woman’s right to choose. Gardner has previously backed both of Trump’s conservative picks for the U.S. Supreme Court — Gorsuch and Kavanaugh — and one more pick could ultimately doom the landmark 1973 abortion case, Roe v. Wade, which rejected state law attempting to ban abortions.