In a letter to Majority Leader Mitch McConnell, R-Ky., and Minority Leader Sen. Chuck Schumer, D-N.Y., former judges from the Third, Seventh and Eighth circuits and a slew of districts urged restraint in replacing Justice Ginsburg, who died earlier this month.
"Our nation is on the precipice of a national election and is in the grip of a global pandemic," they said. "Our citizenry is sharply polarized — a foreboding sign for the health of any democracy. The judicial confirmation process has increasingly become dangerously politicized. Injecting a Supreme Court confirmation fight into this noxious mix will unalterably change and diminish the public's faith in this vital institution."
The judges include William H. Webster, former Eighth Circuit judge and also former head of both the FBI and the CIA. Webster was the lone voice appointed by a Republican president — Ronald Reagan. Former Third Circuit Judges H. Lee Sarokin and Thomas Vanaskie signed the letter, as did former Seventh Circuit Judge Ann Claire Williams.
The public's acceptance of the rule of law comes not just from the fairness and impartiality of the court's decisions, they said, but also from the Senate's confirmation process.
"As former federal judges, we are uniquely aware that the branch of government in which we all were honored to serve has power over neither purse nor sword," they said. "Its legitimacy is largely drawn from the public's faith that its decision-making is fair and true. Unlike the other two branches, the judiciary cannot survive without the consent of the governed, as there is no standing army or police to enforce its orders."
McConnell has drawn criticism from Democrats and dissent from a few in his own party for vowing a vote this year for President Donald Trump's pick, after having refused to consider President Barack Obama's selection to succeed Justice Antonin Scalia in 2016. Justice Scalia died in February of that year; Justice Ginsburg died six weeks before Election Day.
Sen. Mitt Romney of Utah, one of the few Republican senators whose support was in question, said Tuesday he would vote to confirm a nominee this year, virtually assuring the GOP will be able to seat a new justice, likely before Election Day.
McConnell argued on the Senate floor that he has taken a consistent approach: The Senate majority may refuse to consider a nominee from a president of the opposite party during a presidential election year.
He pointed to a line from his speech three days after Justice Scalia's death: "The Senate has not filled a vacancy arising in an election year when there was divided government since 1888."
McConnell said he was following a clear historical precedent in refusing to consider a nominee from the opposite party in 2016 and moving ahead with one from his own party in 2020. He called a failed nomination "the historically normal outcome in divided government," with only two of seven instances resulting in confirmation, the most recent under President Grover Cleveland in 1888.
In contrast, McConnell said, "When voters have not chosen divided government, when the American people have elected a Senate majority to work closely with the sitting president, the historical record is even more overwhelming — in favor of confirmation."
The precedent debate draws from a small data set. This year is only the 16th time in history that a U.S. Supreme Court vacancy has occurred the same year as a presidential election. Over a half-century elapsed between the most recent instances in 1968 and 2016; lightning struck again just four years later.
--Editing by Emily Kokoll.
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