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I can understand why some people view GOP senators as flip-flopping on the Supreme Court confirmation this year vs. 2016, but it’s important to explain why that’s not the case —why these two cases are different and why in both situations GOP senators, including Cory Gardner, are being consistent with historical precedent our country has followed.

A Supreme Court vacancy has opened up in an election year 29 times in our nation’s history. The current president at the time has nominated an appointee all 29 of those instances. On 10 of those occasions, the president and Senate majority were of different political parties. And on those 10 occasions, only one of the 10 nominees was confirmed by election day (two were confirmed after the incumbent president’s re-election, and the rest were blocked). 2016 was this scenario— the president and Senate majority being different parties. 

In the other 19 cases, the Ppesident and Senate majority were of the same party. In 17 of those 19 cases, the election-year nominees were confirmed. 2020 is this scenario— both branches led by the same party. 

Why this varying approach depending on if the two branches are of the same party? It’s because through our votes, we’ve already determined whether the branches of government are unified or divided (led by the same party or not). In divided government (like in ’16), there is a dispute between the branches that should be resolved in the year’s upcoming election — via our votes — before filling a role as important as a Supreme Court judge. In a unified government (like in ’20) there is no dispute between the branches so no need to ask the voters to resolve one.

We can argue the logic of this approach, but the historical precedent is clear and the GOP and Cory Gardner are being consistent with that precedent just as Democrats would if the roles were reversed. 

Joe Biden used this same historical precedent when refusing to confirm any election-year George H.W. Bush appointees. Mitch McConnell also explained it this way multiple times in ’16. Cory Gardner said the “people deserve a role in this process,” referencing the divided-government precedent —which he could have made more explicit in those comments but which he did specifically call out in his online statement at the time. 

This is an understandably hot topic but it’s clear that the GOP and Cory Gardner are exercising their constitutional right to vote on the upcoming Supreme Court nominee and were following their constitutional right and historical precedent when blocking the nominee in ’16.

Will Johnson

Highlands Ranch

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