Vermont's two U.S. senators and its Republican governor came to similar conclusions Friday night following the death of Supreme Court Justice Ruth Bader Ginsburg: The Senate must not vote to confirm a successor until the next president is inaugurated.
In an interview late Friday, Sen. Patrick Leahy (D-Vt.) told Seven Days that a rushed vote to confirm a nominee put forth by President Donald Trump would have lasting consequences for the federal judiciary.
"That would make a mockery of the Supreme Court," said Leahy, the dean of the Senate and most senior member of its Judiciary Committee. "It would totally politicize the Supreme Court. It would say only Republicans can be on the Supreme Court — and that would be so destructive of our whole system of justice."
If the Senate were to hold a confirmation vote just weeks before the November election, Leahy added, "I think it would be decades before the Supreme Court would regain any sense of integrity with the rest of the country."
In a written statement, Sen. Bernie Sanders (I-Vt.) quoted several Republican colleagues who had previously expressed reservations about confirming a nominee immediately before an election.
“The right thing to do here is clear,” Sanders said. “The Republicans in the Senate know it, and many of them have stated it clearer than I could. We should let voters decide. Period.”
Gov. Phil Scott, a Republican, distanced himself from those in his party who believe Ginsburg's seat must immediately be filled. In a remarkable statement, he cited NPR's reporting that, days before her death, Ginsburg said her "most fervent wish" was that a replacement not be confirmed until the next president takes office.
"I know her death will leave many Americans concerned about the appointment of her successor," said Scott, a frequent Trump critic. "While it is important to take the time to mourn her passing, we must also follow precedent, as well as her dying wishes, and delay the appointment process until after Inauguration Day."
U.S. Rep. Peter Welch (D-Vt.) agreed. “There can be no vote in the Senate until the American people have voted to decide who will nominate and confirm the next Supreme Court Justice," he said.
Ginsburg, the second woman to serve on the Supreme Court, died Friday at the age of 87. Her death, which came less than seven weeks before the presidential election, immediately touched off an epic struggle over the balance of power on the court.
In the interview on Friday, Leahy noted that many Republican senators had argued after the death of Justice Antonin Scalia in February 2016 that President Barack Obama's nominee, Judge Merrick Garland, should not be confirmed in a presidential election year. "Unless they want to appear to be total, complete political hypocrites, that's the end of the thing," the senator said. "All you'd need would be three or four of the 10 or more who said that to keep their word."
Asked if he thought that might happen, Leahy said, "I don't know. Do I hope it will happen? Yes. I try to think that you should keep your word. That's the way I was brought up."
Earlier Friday night, Senate Majority Leader Mitch McConnell (R-Ky.) made clear that he would not let recent precedent get in the way of a swift confirmation. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” he said in a written statement.
Leahy took issue with McConnell’s words, particularly the majority leader’s assertion that, “Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.”
“That’s a flat-out lie,” Leahy said, noting that in 1988 the Democratic Senate backed Republican President Ronald Reagan’s nominee, Anthony Kennedy. “I’m just amazed that the majority leader would just go on the news and say something blatantly untrue.”
Sanders also criticized McConnell’s proclamation, saying that the majority leader had “decided to go against Justice Ginsburg’s dying wishes and violate his own past statements” in order to advance a potential Trump nominee.
“McConnell is cementing a shameful legacy of brazen hypocrisy,” Sanders said.
Some Democratic politicians and activists have argued that if their party takes back the Senate next year, they should increase the number of justices on the Supreme Court in order to dilute the power of its conservative members. Asked Friday whether he would back such a plan, Leahy said it was unlikely to come to fruition.
“Is there any possibility of that happening? No — whether it’s a good idea or not,” he said.
Pressed on whether he would support such a strategy, Leahy said, “I’m not trying to duck your question. I literally have not thought about it because it seemed so improbable.”