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Former Federal Judges to Mitch McConnell: Confirming a Nominee Will ‘Unalterably’ Undermine Supreme Court’s Legitimacy

A group of former federal judges asked members of the Senate on Tuesday not to confirm a new justice to the U.S. Supreme Court until after the presidential inauguration in January, warning the chamber that the judicial branch was in serious danger of losing its legitimacy. The letter, penned by six former U.S. district judges and four former U.S. circuit judges from across eight states, was addressed to Senate Majority Leader Mitch McConnell and posted to the website of government watchdog group Project on Government Oversight (POGO).

Mark W. Bennett, W. Royal Furgeson, Nancy Gertner, James Giles, Stephen Orlofsky, Stephen C. Robinson, H. Lee Sarokin, Thomas Vanaskie, William H. Webster, and Ann Claire Williams each signed the letter. A number of them were appointed by Bill Clinton, but others were appointed by Jimmy Carter, Barack Obama, George W. Bush, Richard Nixon, and Ronald Reagan to various federal courts.

The coalition of judges emphasized that unlike the executive and legislative branches, the legitimacy of the federal judiciary 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 undersigned wrote. “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.”

After saying that the global pandemic has only compounded existing threats to U.S. democracy, the judges implored the Senate not to take any action that might further destabilize the nation in the lead up to November’s election.

“This is why we implore Senators to exercise restraint,” reads the letter, speaking in ominous tone of a democracy hanging by a thread. “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 letter concluded by warning the potential damage to the Supreme Court would almost certainly be irreparable.

“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,” they wrote. “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.”

Also on Tuesday, Sen. Mitt Romney (R-Utah) released a statement saying he would not oppose a vote on a replacement for Ruth Bader Ginsburg, who died on Friday at 87 years old. The Romney stance virtually ensures that Republicans will have enough support in the Senate to secure President Donald Trump’s third appointment to the Supreme Court during his first term in office.

[image via Drew Angerer/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.