WASHINGTON – Today, U.S. Senator Chris Coons, a member of the Senate Judiciary Committee, joined NPR to discuss Republican efforts to swiftly confirm a Supreme Court justice and President Trump’s comments on a peaceful transition of power.
“I think this creates a significant complication for the legitimacy of the Court and any justice nominated this close to an election rushed through in a partisan process where the president explicitly says, I want my handpicked justice in order to rule on my election, that justice should recuse herself,” said Senator Coons. “If you think about it, Justice Ginsburg's dying wish was that the voters should pick the next president and the next president pick her successor. Because she knew what was on the line, not just the future of the Affordable Care Act and gender- and LGBTQ-equality and labor rights and environment, but reproductive rights. Now we can add to that the election and the whole legitimacy of our election.”
Senator Coons continued, “I've learned in ten years on the Foreign Relations Committee when a head of state elsewhere in the world with authoritarian tendencies tells you they intend to do something outrageous, like not accept a peaceful transition after an election, something President Trump said yesterday, you should believe them.”
Full audio is available here. A transcript is provided below.
Q: Senators find out soon who they will consider as a possible Justice of the U.S. Supreme Court. The late Justice Ruth Bader Ginsburg was moved to the U.S. Capital to lie in state on Friday. President Trump names her replacement Saturday. Senate Republicans are determined to move quickly on that replacement, somewhat confirmation, before Election Day and Democrats are deciding what to do. Senator Chris Coons is a Democrat from Delaware and he sits on the Senate Judiciary Committee. Senator, welcome back to the program.
Sen. Coons: Great to be on with you, Steve.
Q: Can a Court nominee, any nominee, be properly considered in less than 6 weeks, which is the time we have before the Election Day?
Sen. Coons: Well Steve, I wish that the Republican majority would both follow the precedent they set in 2016 and allow us time to properly consider the background, the writings, the judicial philosophy, of whoever may be nominated this weekend. We should not be barreling ahead with this. No presidential nominee to the Supreme Court has been confirmed in our history this close to a presidential election. I believe we’re just 40 days out and importantly half the states, 25 states, have already begun early voting.
Q: Rush Limbaugh, conservative radio host, has been suggesting to the Republicans they should move this so quickly they don't even bother with a hearing, which would be before your committee. I’d like to know what the rules are, Senator Coons. Is there any rule, any law, any requirement, that there must be a hearing for whoever the president nominates?
Sen. Coons: The Constitution provides that the Senate shall give advice and consent, but there's nothing in the Constitution that gives the contours of exactly what that means. The Senate Judiciary Committee relies on tradition, on the way that previous nominations have always been done, and I'm not aware of there being a rule that requires a hearing to be of any particular length – an hour, a day, a week. Traditionally, we have literally had weeks to consider the background of a nominee and at least four full days of confirmation hearings.
Q: But it sounds like if Republicans were to choose they were in a rush, they could dispense with all of that.
Sen. Coons: The Republican majority seems bent on an exercise of raw political power and if that's what they choose to do, there’s nothing in our rules that allows us to prevent that. What I hear from Delawareans, Steve, is “why does Mitch McConnell want to move heaven and Earth to confirm a nominee with just 40 days left instead of taking up and passing a bipartisan relief package for this pandemic and why is the Supreme Court hearing an argument supported by President Trump the week after the election to take healthcare protections away from half of all Americans, the gender discrimination protections of the ACA and the pre-existing condition protections from a hundred million Americans including the six million Americans infected in this pandemic who have new pre-existing conditions?” We should be focusing on those two issues: protecting healthcare, delivering relief from the pandemic.
Q: Well there’s another reason that Republicans have given for rushing a judge in or from your perspective rushing a judge in. Vice President Pence has referred to it, the President referred to it. The President explicitly said yesterday, I want the justice on the Supreme Court so that justice can rule in what he expects to be a disputed election. He's already anticipating going to the Supreme Court with the results of this election and he would like to choose the justice who would be one of the nine making a decision there. I guess my question for you is whether you think that justice, whoever it is, could rule fairly on a disputed election after the President has said that's the reason I want to appoint the person.
Sen. Coons: I think this creates a significant complication for the legitimacy of the Court and any justice nominated this close to an election rushed through in a partisan process where the president explicitly says, I want my handpicked justice in order to rule on my election, that justice should recuse herself. If you think about it, Justice Ginsburg's dying wish was that the voters should pick the next president and the next president pick her successor. Because she knew what was on the line, not just the future of the Affordable Care Act and gender- and LGBTQ-equality and labor rights and environment, but reproductive rights. Now we can add to that the election and the whole legitimacy of our election. Steve, I've learned in ten years on the Foreign Relations Committee: when a head of state elsewhere in the world with authoritarian tendencies tells you they intend to do something outrageous, like not accept a peaceful transition after an election, something President Trump said yesterday, you should believe them.
Q: If there is a hearing, assuming that Republicans follow tradition and give a full hearing to the nominee, will you be asking the justice to recuse herself, and we’re using herself because the president has said he's likely to nominate a woman?
Sen. Coons: I think that's an important question to raise. I think that needs to be pressed in whatever form by the nominee because frankly, every standard of judicial conduct would suggest that where you have a complicated relationship, where you have arguably an ethical complication as a judge, you should recuse yourself. I know this will be hotly debated by members of the Judiciary Committee as well as legal ethicists but I suspect many of us will end up pressing that question in whatever form.
Q: Couple of other questions Senator Coons. You said that Mitch McConnell, the Senate Republican leader, is exercising raw political power which appears to be simply a statement of fact. They've got more than 50 votes, they say they have the power, they're going to use it. Do you have, do Democrats have, any power of any kind, any raw power that you could use to delay or block a nomination?
Sen. Coons: Well, Steve, we should not be proceeding with this nominee. We are left frankly hoping that two other Republicans will join Senators Murkowski and Collins in saying that “fair is fair” and they will follow the same standard that they set in 2016, of refusing to consider a nominee during an election. Back then, it was Justice Scalia who passed 10 months before the election and they held that seat open all the way through the election. Here we are, as I said just 40 days, so we shouldn't be doing this process. There shouldn't be a confirmation process but frankly, we're going to make our case to the American people that it's the Affordable Care Act that hangs in the balance and that what both President Trump and the Republican majority are doing is an illegitimate partisan rush to fill a vacancy.
Q: If I might though, I'm glad you mentioned 2016. Republicans clearly flip flopped. They said in 2016 that people should decide. They say in 2020, it's all different because the president is from their party. But they've gone to say, Democrats have switched places too. In 2016 you said, there's one president, one Senate, and they should do their job. Have you flipped flopped?
Sen. Coons: Look, I think the changes in position have one significant difference. We opposed their effort to set this new standard in 2016. They're refusing to live by their own standard. And there is a significant difference historically in terms of how close we are to the elections, the fact the election is underway and now the fact that the president is saying, I want my handpicked justice to be prepared to intervene. In 2000, the Supreme Court reached down and stopped proceedings in Florida and thus decided the outcome. I think that really challenged the legitimacy of the Court and should not be repeated.
Q: Senator Chris Coons of Delaware, always a pleasure. Thank you so much.
Sen. Coons: Thank you, Steve.
Q: He sits on the Senate Judiciary Committee.