Former Federal Judges Warn Mitch McConnell: ‘Legitimacy of the Supreme Court Is Not Something That Can Be Recovered’

Hours after Supreme Court Justice Ruth Bader Ginsburg died on Friday, Senate Majority Leader Mitch McConnell (R-KY) pledged to move forward with the confirmation process for President Donald Trump’s nominee to fill Ginsburg’s seat.

Photo by Alex Wong/Getty Images

With only 41 days until the election, McConnell has garnered enough support among his caucus to approve whomever Trump picks, in a complete reversal of the standard set by McConnell back in 2016.

“The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be,” McConnell said in 2016.

On Tuesday, a group of former federal judges wrote a letter to McConnell warning that a hasty confirmation of a third Trump appointment would degrade the public trust and endanger the legitimacy of the Court.

The letter, published on the Project for Government Oversight’s website, was signed by nearly a dozen former United States circuit and district judges, and offered a reminder of the importance of maintaining the faith of the public:

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. 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.

The jurists urged McConnell to use the power of the Senate wisely:

But the public’s acceptance of the rule of the law doesn’t just derive from the fairness and impartiality of the Court’s decision-making: it is drawn, in large measure, from the decisions made by the Senate in the judicial confirmation process. The confirmation power exerts an extraordinary influence over the public’s perception and understanding of the role of courts and judges in our society.

The judges cautioned that furthering the polarization of judicial nominations will jeopardize the “health” of American democracy and erode the public’s faith in the principle of checks and balances:

This is why we implore Senators to exercise restraint. Our nation is on the precipice of a national election and is in the grip of a global pandemic. 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.

At stake, the judges wrote, is the legitimacy of the Court itself:

For the sake of the Court, we respectfully ask that you withhold consideration of any Supreme Court nominee until after the inauguration of the president chosen by the American public. The legitimacy of the Supreme Court is not something that can be recovered if it is lost. It is up to you to demonstrate the same restraint demanded of our judiciary.

The signatories are listed below, and include former FBI & CIA Director William Webster:

Mark W. Bennett
Judge, U.S. District Court, Northern District of Iowa

W. Royal Furgeson
Judge, U.S. District Court, Northern District of Texas

Nancy Gertner
Judge, U.S. District Court, District of Massachusetts

James Giles
Judge, U.S. District Court, Eastern District of Pennsylvania

Stephen Orlofsky
Judge, U.S. District Court, District of New Jersey

Stephen C. Robinson
Judge, U.S. District Court, Southern District of New York

H. Lee Sarokin
Judge, Third Circuit Court of Appeals; U.S. District Court, District of New Jersey

Thomas Vanaskie
Judge, Third Circuit Court of Appeals; U.S. District Court, Middle District of Pennsylvania

T. John Ward
Judge, U.S. District Court, Eastern District of Texas

William H. Webster
Judge, Eighth Circuit Court of Appeals; U.S. District Court, Eastern District of Missouri; Director, Federal Bureau of Investigation; Central Intelligence Agency

Ann Claire Williams
Judge, Seventh Circuit Court of Appeals, U.S. District Court, Northern District of Illinois

Trump said that he intends to announce his “on Friday or Saturday” of this week. The suspected top two contenders are both women: Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit and Judge Barbara Lagoa of the United States Court of Appeals for the Eleventh Circuit. Other names, like Republican Senators Ted Cruz (TX) and Tom Cotton (AR), have also been floated.

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