Senators Thune and Rounds:
I am writing to you today about the current Supreme Court vacancy.
On Monday, Donald Trump announced his nominee, Brett Kavanaugh. I did not see the televised event, though given what we’ve seen of Trump over the past 500-plus days of his Administration, I can only assume the President spent 2 minutes talking up Kavanaugh’s “tremendousness” followed by 15 minutes reminiscing about his Electoral College victory before shouting “FAKE NEWS!” and feeling up a flag as he exited the podium.
I am not writing about Mr. Kavanaugh, though.
I am instead writing about the theft perpetrated by Mitch McConnell to which you were both public and willing accomplices; for which you both should be ashamed; and about which you both have an opportunity to be redeemed.
The theft, of course, is the Supreme Court seat vacated by the death of Antonin Scalia in February 2016. Article Two of the Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” President Obama fulfilled his Article Two obligation in March 2016, nominating Merrick Garland as Scalia’s replacement. At this point, the Senate utterly abdicated its duties, refusing to even consider Garland’s nomination for TWO-HUNDRED NINETY-THREE days.
Senate Majority Leader Mitch McConnell attempted to justify this unprecedented judicial blockade by appealing to a nonexistent “Biden Rule,” referring to a 1992 argument made by then-Senator Joe Biden. Biden argued that, should a Justice voluntarily resign in the summer months of a bitter election year, the nomination and confirmation of a new justice should happen after the November election. That McConnell interpreted this as “should a SCOTUS Justice die at any time in an election year, then nominations and confirmations happen after the following Inauguration Day” illustrates his lack of (at worst) civic and moral duty or (at best) basic comprehension of the English language.
More galling, however, is that you — my Senators — chose to ignore your Constitutional obligation and follow McConnell’s lead. Even worse, you chose to insult the American people while doing it. On March 16, 2016, Senator Thune issued a statement that read “The American people deserve to have their voices heard on the nomination of the next Supreme Court justice, who could fundamentally alter the direction of the Supreme Court for a generation.” That very same day, Senator Rounds spoke to the Senate and reiterated that idea, stating “the people of the United States deserve a voice in determining the next Supreme Court Justice.”
(It’s worth noting that Senator Rounds then followed this with the claim that the voices of those people who voted for Barack Obama in 2012 could be ignored, since they failed to vote for Mr. Obama in several governorships in 2014, belying a deep misunderstanding of, at the very least, basic physics.)
The American people DID speak on that SCOTUS nomination, Senators. Nearly sixty-six million people — a majority of the electorate — voted in 2012 for Barack Obama to continue to serve as President through the start of 2017. And four years later, despite Senator Rounds’ gubernatorial bean-counting, a majority of Americans still wanted the Senate to vote on Obama’s SCOTUS nominee (according to an NBC/WSJ poll released in April 2016).
It is insulting, Senators, that you willfully ignore the will of the majority of the electorate. It is insulting that you assume those voters did not consider the Supreme Court in their vote, or worse, assume their considerations unworthy of yours. Your words insult the 145 THOUSAND South Dakotans who voted for Mr. Obama in 2012, and your dereliction of duty insults us all.
You took part in the theft of a Supreme Court seat from a duly (and popularly) elected President, and by extension, you stole a Supreme Court seat from the American People. While Trump daily degrades the office of the Presidency, you two helped to diminish the role of the Legislature and contributed to Americans’ failing faith in its Judiciary. You put partisan loyalty over the Constitution you swore to uphold. History will rightly shame you for it.
And yet, amazingly, fate has provided to you an opportunity for redemption.
Justice Kennedy’s (voluntary, summer month) resignation provides the Senate another opportunity to advise and consent on the selection of his replacement, and the GOP’s tenuous one-seat advantage in the Senate gives you both extraordinary leverage to compel your Republican colleagues to right their previous wrong.
Let us assume that you meant it when you said “the people of the United States deserve a voice in determining the next Supreme Court Justice.” Senators, they have spoken! A majority of voters chose Obama’s successor to be President in 2016. More than four million Americans protested against the current President on his very first day. Trump’s policies spark massive national and international protests on a nearly monthly basis.
The American people have spoken, Senators! I ask you to HEAR THEM!
Refuse to consider any nomination from the President until he concedes to first allow Merrick Garland to be considered fully and fairly by the Senate.
I am not asking that you confirm Mr. Garland, Senators, merely that you consider his previous nomination, and conduct with full rigor his deserved confirmation hearings. Perhaps Mr. Garland’s judicial record and comportment will be satisfactory to you, and he is confirmed to the Court; perhaps the Senate inquiry will reveal that Mr. Garland is undeserving of the post, and you will return to Mr. Kavanaugh; but in either case, you will have helped ensure the Senate fulfills its Constitutionally obligated role, however belatedly.
Make good on your commitment to listen to the American people. Recommit yourself to uphold the duties of the Senate to which you were elected.
Do your damn job, Senators.