Jimmy’s Colorado Politics Column | Gardner can help repair judiciary

Written by on September 21, 2020

On Friday, U.S. Supreme Court Justice Ruth Bader Ginsburg, 87, passed away after 27 years on the bench.  Her legacy as a trailblazer, a go-getter, an intellectual giant and, in the words of her former D.C. Circuit colleague, Judge Ken Starr, “equality’s gracious champion,” is worthy of recognition and honor.  While one can vehemently disagree with her jurisprudence, we must all take time to show Justice Ginsburg the respect she is due.

Yet, as President Trump and the U.S. Senate celebrate her life and legacy, they must heed the supermajority of Americans who believe the Senate should move forward with nominating and confirming a new justice.  Even more, Sen. Cory Gardner should support and vote for Trump’s selection.

Democrats oppose a nomination this year, pointing to what Gardner and other Republicans said in 2016.  When term-limited President Obama nominated Judge Merrick Garland to fill the seat previously held by the late Justice Antonin Scalia, there was near-universal opposition on the right — including Gardner — to even holding the process.  So why should Gardner advocate something different in 2020? 

If you read his March 2016 statement in full, you’ll realize he’d actually be consistent.  Contextualizing the Garland nomination, Gardner observed, “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.”  He explained, “That is why the next president…should have the opportunity to fill the vacancy.”  Remember those words: “That is why.”

Gardner was absolutely correct.  Obama had been warping the judiciary into an institution dedicated to upholding a legislative and regulatory regime consistently antithetical to the Constitution.  It had to be stopped.  That was Gardner’s philosophical basis as a senator empowered with advice and consent.

Trump, however, is repairing the federal judiciary.  The Senate has confirmed 216 Article III judges, including two Supreme Court justices.  They all seem to understand the need to rein in excessive government and protect individual rights, as the Constitution intends. For example, the notoriously liberal Ninth Circuit is being rebalanced: there were eleven more Democrat-appointed than Republican-appointed judges when Trump took office.  Now there are only three. 

The president was elected with a mandate to mend the courts.  In 2016, a winning coalition of Americans brought the Electoral College to Trump.  Many of us backed him because the judiciary — particularly the Supreme Court — was Priority #1.  When then-candidate Trump released an unprecedented list of potential Supreme Court nominees in Spring 2016, he reassured skeptical voters.  Thus, he demonstrated that the federal judiciary would be a significant component of his presidency.

Trump literally ran on remedying the courts.  Gardner’s 2016 statement underscores his longstanding agreement with this approach, predating the Trump administration.  Elections have consequences.  Fulfilling pivotal campaign promises doesn’t stop at an election’s edge.

Under “background” in his 2016 statement, Gardner highlighted how a Senate run by “a different party than the president has not confirmed a Supreme Court nominee during a presidential election year since 1888.”  That’s no minor detail; it’s a crucial distinction.  Republicans currently control both the Senate and the presidency.  Contrarily, the 2016 GOP Senate was under no obligation to approve a Democratic president’s appointee. 

In that year’s election, Republicans held onto the Senate.  In 2018, with the recent nomination of Justice Kavanaugh front and center, Republicans added two more senators.  We have a Republican president who was elected to make constitutionalist judicial appointments and a Republican Senate strengthened in 2018 to continue repairing the judiciary — something Gardner has always supported. 

Finally, Obama was not up for reelection in 2016.  In something as consequential as a Supreme Court appointment, a lame-duck president doesn’t have the same standing as a president who is not term-limited.

The big problem for Democrats is not that Trump is president and can fill a vacancy.  Democrats have grown government so much and relied on the courts for so long that they are fearful.  Win or lose in November, a constitutionalist court is a lasting impediment to their long-running expansion of power.  That’s why if Democrats were in Republicans’ position, they would certainly move apace.  Indeed, if Democrats had the Senate in 2016, we would have a Justice Garland. 

A key plank of the Trump presidency is to restore the Constitution and restrain judicial activism. Gardner must be consistent: he must aid Trump in this critical effort.

Click here to read Jimmy’s September 21 column at Colorado Politics, a sister publication of The Washington Examiner.

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