U.S. Sen. Cory Gardner said Tuesday morning he plans to vote to confirm Amy Coney Barrett, President Donald Trump’s nominee to the U.S. Supreme Court.
In an interview with The Durango Herald, Gardner said he was scheduled to meet with Barrett on Tuesday afternoon.
“Right now ... I plan to vote for her,” Gardner said Tuesday morning.
Gardner, a Republican, said he looks at three factors in evaluating judicial picks: a nominee who will uphold the Constitution, someone who won’t legislate from the bench and someone who will advocate for the Constitution. He said Barrett seems to meet those criteria.
“I certainly support a well-qualified nominee for the court,” he said. “I voted for Judge Barrett in 2017. I would imagine voting for her again.”
That puts him at odds with his Colorado colleague, U.S. Sen. Michael Bennet, a Democrat. Bennet has said he is opposed to filling the vacant Supreme Court seat before the election on Nov. 3. Bennet and Gardner were similarly divided on the vote to confirm her to the 7th Circuit Court of Appeals in 2017.
Senate Republicans were quick to express a desire to fill the seat before the election.
Gardner, Senate Majority Leader Mitch McConnell, R-Ky., and several others were opposed in early 2016 to filling a Supreme Court seat during an election year.
After Ruth Bader Ginsburg’s death on Sept. 18, Gardner was one of several Republican senators viewed as a potential swing vote against their party regarding a Supreme Court nominee. For him and several other senators up for re-election, it was unclear how the looming battle over the Supreme Court vacancy would affect voters. Former Gov. John Hickenlooper, who is challenging Gardner for his Senate seat, has vocally opposed filling the Supreme Court seat before the election.
“Donald Trump and Cory Gardner are jamming through a lifetime appointment to the Supreme Court as people are already voting instead of allowing the voters to make our voices heard,” Hickenlooper said in a news release.
Bennet and other Democrats have echoed Hickenlooper’s sentiment, frequently referencing the McConnell-led effort to block then-President Barack Obama’s 2016 appointment of Judge Merrick Garland to the Supreme Court. Bennet spoke on the Senate floor last week before Barrett’s appointment lambasting McConnell for agreeing to bring a Trump nominee forward for a vote.
“From the founding of this country until today, we have had nine Supreme Court vacancies arise in the first six months of a presidential election year,” Bennet said on the Senate floor. “The Senate confirmed every single one of them – except Merrick Garland. The Senate has never confirmed a Supreme Court nominee this close to a presidential election. … And now, we’ve given our consent, apparently, before we even know who the nominee is, because of Donald Trump’s magical powers, we’re willing to somehow take it on faith.”
However, there is one key difference at play between Garland’s nomination in 2016 and Barrett’s nomination now. When Obama nominated Garland, he was a Democrat faced with a Republican-controlled Senate. Trump is a Republican presenting a nomination to a Republican-controlled Senate.
Of the 15 election-year Supreme Court vacancies in American history, party control has been a deciding factor in a strong majority. A president has nominated someone before a Senate controlled by his own party eight times. Of these, seven were confirmed, with one nomination, that of Associate Justice Abe Fortas to the position of chief justice, being struck down after questions arose surrounding the candidate’s ethics. Of the seven times the president has put forth an election-year nominee before a Senate controlled by the opposite party, the nominee has been confirmed only twice. The last was Melville Fuller in 1888.
Public polls conducted both before and after Barrett was officially nominated have been divided on when the seat should be filled. Some polls found that a majority think whoever wins the presidency should fill the seat and others found that a majority is in favor of moving forward with the nomination before the election. In both cases, the majority opinion leads by only a few percent. These polls have mostly been conducted nationwide, although a few focused on presidential election swing states such as Wisconsin; no poll has been conducted focusing on Colorado.
The vote is likely to be close; all Democratic senators have expressed their opposition to filling the seat along with two Republicans, senators Lisa Murkowski, R-Alaska, and Susan Collins, R-Maine. Republicans currently hold a 53-47 majority in the Senate; to confirm Barrett to the court, Republicans must have at least 50 votes. In the event of a 50-50 tie, Vice President Mike Pence will cast the deciding vote. Therefore, at least four Republicans will need to vote against the nomination for it to fail. With Gardner’s support, along with the support of other vulnerable senators like Martha McSally, R-Ariz., it appears that Barrett will have enough votes to be confirmed.
Even with support from most Republican senators, GOP leadership will face a race against the clock if they hope to confirm Barrett before the election. Confirmation hearings are slated to begin Oct. 12; those hearings have in the past taken multiple months. Sen. Lindsay Graham, R-S.C., who is chairman of the Senate Judiciary Committee, said he anticipates the committee clearing Barrett’s nomination by Oct. 26, which would leave about a week for the full Senate to vote on the nomination before the election.
The timeline is faster than average for a Supreme Court appointment. There have been a number of Supreme Court justices confirmed on similar timelines in the past, including Ginsburg herself. Ginsburg, as well as her former associate justice colleagues Sandra Day O’Connor and John Paul Stevens were confirmed on accelerated timelines. The Senate voted to confirm Ginsburg 42 days after she was nominated. O’Connor’s nomination was voted on 33 days after her nomination. Stevens’ confirmation was even faster; he was voted on 19 days after being nominated. As of Tuesday, there were 35 days until the election.
However, a 35-day timeline will require the Senate to move more quickly than it has in recent history. Associate Justice Brett Kavanaugh’s appointment in 2018, the most recent appointment to the court, was announced on July 9 that year and did not see a Senate-wide vote until Oct. 6, nearly three months later. Before him, Associate Justice Neil Gorsuch’s appointment was also considered for more than two months before receiving a full vote.
John Purcell is an intern for The Durango Herald and The Journal in Cortez and a student at American University in Washington, D.C.
An earlier version of this story erred in reporting that the pace of Amy Coney Barrett’s confirmation was unprecedented; although quicker than average, there have been several justices confirmed on similar timelines. The story was also updated to give more background on the historic relationship between party control of the Senate and election year confirmations.