Dear Senator Bennet: What You Say Tomorrow Is More Important Than How You Vote

Dear Senator Bennet:

You are my senator. I am a fourth generation Coloradan. I live in Denver. I am a tenured professor at the University of Denver Sturm College of Law. I met you at one of your fundraising events last fall, where I was honored to talk briefly with you and inspired by your remarks. And I was very proud to vote for you last November.

I was moved to write to you after I learned that you will be introducing Neil Gorsuch at his confirmation hearing tomorrow. I know that historically introducing a nominee for a judicial appointment does not translate to voting for that person, and your office has made clear that your introduction of Judge Gorsuch does not mean you intend to vote for him.

I am not writing to you today to ask you to vote against Judge Gorsuch. The reality is that Judge Gorsuch will probably be the next Supreme Court Justice no matter how you vote. You know better than I do that your Republican colleagues can — and, if necessary, likely will — exercise the nuclear option to create an unblockable majority. And some moderates and liberals — not least those who will likely argue in front of a future Justice Gorsuch, or who are hoping that he hires their students as law clerks — have endorsed Judge Gorsuch, meaning that the nuclear option may even be unnecessary.

So, again, I am not writing to ask you to vote against Judge Gorsuch. I am writing to you because what you say tomorrow is far more important than how you vote. I am writing to you because what you say tomorrow will be the most important thing that anyone says tomorrow. Indeed, what you say tomorrow may be the most important thing that anyone says during this confirmation hearing. What you say will set the tone for everything to come.

What you should say tomorrow is that the Senate should not be in the position of holding this confirmation hearing at all. You should say that the reason there is a vacancy on the Supreme Court right now is that the Republican members of the Senate willfully failed to perform their constitutional duty. Your Republican colleagues refused to hold hearings on Judge Merrick Garland, who President Obama nominated to the Supreme Court eleven months before the end of his second term of office. This refusal is a travesty of constitutional dimensions. As many others have explained persuasively and in great detail, there is simply no precedent for the Republican senators’ treatment of Judge Garland. Never before in the history of our nation has a Senate obstructed a sitting president’s efforts to nominate a Supreme Court justice for nearly a full year, refusing even to meet with the nominee.

Article II, section 2 of the United States Constitution says that the President “shall, with the Advice and Consent of the Senate,” appoint justices to the Supreme Court. The important word is shall — not may or could, but shall. I am a scholar of the Constitution. I teach constitutional law to future lawyers. Many parts of the Constitution are ambiguous. This one is not. Nor has it been interpreted or implemented inconsistently throughout America’s history. Your Republican colleagues’ failure to hold hearings on Judge Garland’s nomination is a nakedly partisan dereliction of their constitutional duty. And as a result, the impending hearing on Judge Gorsuch is fundamentally tainted.

There are some who now say that the Democrats should now play nice, or take the high road, or let bygones be bygones. They say that the Democrats should look past the constitutional travesty of the past year and treat Judge Gorsuch’s confirmation hearing as if on a clean slate.

But to look away politely from this travesty, as though it were a terrible car accident or an unsightly garbage dump, would be a travesty in itself. You and other Democrats would do our Constitution and our democracy a great disservice by proceeding with Judge Gorsuch’s confirmation hearing as though it is simply part of the normal course of business.

The reality is that unilateral disarmament does not work in a two party system. Indeed, unilateral disarmament rarely works at all. No thinking person would recommend that we dispose of our nuclear weapons and then cross our fingers that Russia does the same thing. No thinking person would tell a woman whose husband hits her in the face one evening to cook him a nice dinner the next evening and pray that he won’t hurt her again. Democracy simply doesn’t work when the two major parties are playing by vastly different rules.

The way to ensure that future confirmation hearings proceed the way the Founders intended is to put the failures of the past front and center. The Democrats — beginning, crucially, with you, tomorrow — must say, over and over, so that America hears, so that even your Republican colleagues hear, that these proceedings are illegitimate in light of what has come before. Judge Garland should have received a confirmation hearing. Our Constitution required such a hearing. But Republican senators, against the command of the Constitution, refused to hold a hearing. And we cannot allow anyone to forget it. Their behavior toward Judge Garland must become the main storyline of this hearing. It cannot recede into the footnotes.

That this confirmation process has been contaminated by the acts of Republican senators is not personal to Judge Gorsuch. I have no doubt I disagree with the judge’s views, strongly in many cases. But by some accounts he is a reasoned jurist and qualified to hold the position. I appreciate that, if some reports are accurate, he has already expressed concern about the unprecedented assault the current president has waged on the judiciary. But Judge Gorsuch’s qualifications are simply irrelevant to the concern I am asking you to raise tomorrow. What matters is the sanctity of the constitutional process for confirming judges, and the Republican senators’ blatant disregard for it.

Senator Bennet, you are a lawyer. I am too. As lawyers, we both swore an oath to uphold the Constitution. When you became a senator, you swore another oath — this one to “support and defend” the Constitution, an oath mandated by the Constitution itself. I am asking you — as a fellow lawyer, as a constituent, as a citizen— to honor your oath tomorrow to the fullest extent.

Please, Senator Bennet, speak out for the Constitution. America is listening.

With respect,

Nancy Leong

The author is an Associate Professor at the University of Denver Sturm College of Law. She is currently a Visiting Professor at the Washington University School of Law in St. Louis. She teaches and researches on subjects related to constitutional law and civil rights. Her biography and publications are available here.

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