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Politics and Government

Here’s what John Hickenlooper thinks about a U.S. Supreme Court expansion and what makes a good justice

As President Donald Trump and Republicans in the Senate look to fill Justice Ruth Bader Ginsburg’s seat, the court is becoming a central election issue

Former Gov. John Hickenlooper speaking with attendees at the 2019 California Democratic Party State Convention at the George R. Moscone Convention Center in San Francisco. (Gage Skidmore, via Creative Commons)
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Former Gov. John Hickenlooper says a commitment to upholding civil rights — including abortion protections under Roe v. Wade — is critical for his support of any U.S. Supreme Court nominee. 

“I’ve never used it as a litmus test,” he added of a judge’s views on abortion, “but I do think most people who are passionate and committed to civil rights end up on (the side of believing) a woman does have a right to control their body.”

But in an interview with The Colorado Sun, the Democratic candidate for U.S. Senate said he is unwilling to talk right now about potential changes to the makeup of the nation’s highest court, even as fellow Democrats weigh adding justices and enacting term limits to combat conservative influence on the panel.  

The U.S. Supreme Court has become a central 2020 election issue following the death last week of Justice Ruth Bader Ginsburg, especially as President Donald Trump and the GOP-controlled U.S. Senate barrel toward filling her seat. 

U.S. Supreme Court Justice Ruth Bader Ginsburg speaks on the Main Stage of the National Book Festival, August 31, 2019. (Photo by Shawn Miller/Library of Congress)

In Colorado’s nationally watched U.S. Senate contest, Hickenlooper is pressuring incumbent Republican Cory Gardner to hold off on confirming a replacement for Ginsburg, a leading liberal voice on the court, until after the Nov. 3 election is decided. 

In 2016, Gardner joined his Republican colleagues in refusing to consider President Barack Obama’s nomination to replace the late Justice Antonin Scalia, citing the election that was nine months away. Gardner now says he will vote to confirm a “qualified” nominee despite the coming election, meaning it’s likely that Ginsburg’s replacement will be chosen before the next presidential term begins in January. 

MORE: Cory Gardner says he will vote to confirm a “qualified” replacement for Ruth Bader Ginsburg

“How can he, with a straight face, go to the people of Colorado and do an about-face?” Hickenlooper told The Sun. “Just flip-flop completely.”

But how does Hickenlooper view the Supreme Court? And what would he like to see in a nominee to serve on the panel? Should the court be changed as fellow Democrats have suggested?

When he was running for president last year, he gave seemingly contradictory answers to some of those questions. The Sun spoke with Hickenlooper on Tuesday to find out more about his views on America’s most important judicial institution:

Expanding the number of justices on the Supreme Court

When he was running for president, Hickenlooper told two different media outlets two seemingly different things when asked about his views on expanding the number of justices on the Supreme Court. 

“I’m open to it,” he told The New York Times

“I’m concerned by the precedent this could set,” he told The Washington Post

The Supreme Court has had different numbers of justices at different points in American history. But recently, with the prospect of a conservative-dominated court, some Democrats have openly explored the idea of expanding the panel and “packing” it with more liberals. It would take a change in law by Congress, but if Democrats seize control of the presidency and Congress, it’s possible they would have the votes to make the changes.

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Hickenlooper told The Times that he thinks expanding the court would require a “national discussion, comprehensive in scope.” He said any changes should be made carefully as to not disrupt how the nation’s founding fathers formed the U.S. judicial system.

He told The Washington Post, however, that he was concerned about altering the number of justices on the court for another reason.

“As president, I could add five seats, but the next Republican president might then add six more,” he told the newspaper. 

At the same time, he added in his remarks to The Washington Post: “I am concerned about the current conservative composition of the court and the threat it poses to core values like reproductive rights and civil rights.”

Hickenlooper was also recorded on the presidential campaign trail saying he’d be open to court packing if he felt it was necessary. 

“If the basic civil rights of this country seem at risk, I think that might be the one thing that would persuade me — and perhaps it would be on a temporary basis — to court pack,” he said.

The Supreme Court Building is the seat of the Supreme Court of the United States. (Provided by U.S. Department of State)

Asked on Tuesday to clarify his position, Hickenlooper declined.

“At this point, I am so focused on making sure that I do everything possible to illuminate the decision that these senators are going to make,” he said. “The moment I start opining on hypotheticals, that’s going to distract people away from these senators. At least for the time being, as long as this process is going on, I’m going to be like a laser — focused on ‘here is the commitment Cory Gardner made.’”

His refusal to talk about a major campaign issue comes about two weeks before ballots go to voters in Colorado.

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Setting a timeline on presidential judicial nominations

Hickenlooper, as a presidential candidate, also told The Washington Post that he would “support reforms that require a vote on a president’s nominee within a set period.”

At the time, however, he didn’t get into specifics about what that timeline might be. 

Asked on Tuesday to elaborate, Hickenlooper refused.

“I don’t know. This is the wrong time to be looking at it,” he said. “I am still so focused on trying to persuade a couple more of these senators to change their approach.”

Republicans, who are facing accusations of hypocrisy for their change of heart related to election-year Supreme Court nominations, are trying to flip the script on Democrats by pointing to Hickenlooper’s previous support for a swift nomination of Obama’s 2016 Supreme Court nominee, Merrick Garland. 

“Merrick Garland deserves to be considered,” Hickenlooper tweeted four years ago. “We hope the Senate will honor its constitutional responsibilities.”

Former Colorado Gov. John Hickenlooper turns in his signatures to secure his spot in the 2020 U.S. Senate Democratic primary on Feb. 19, 2020. (Jesse Paul, The Colorado Sun)

Now, Hickenlooper is pushing for Senate Republicans to delay a confirmation vote on a nominee to replace Ginsburg until after the presidential election is decided.

“They have no standing, really, to criticize anyone,” said Kyle Kohli, who leads the conservative group Compass Colorado.

Hickenlooper rejected the GOP criticism as a false equivalency aimed at trying to avoid the fact that Republican senators have changed their own standards to benefit themselves. “They forced their way through last time, so they’ve got an obligation to stick to what they wanted,” he said.  

Hickenlooper added that the timing now is much different than four years ago. Garland was nominated months before the 2016 election, when now Senate Republicans are poised to fill Ginsburg’s seat in a matter of weeks ahead of Nov. 3. 

“The difference between being nine months away … that’s very different than 42 days,” Hickenlooper said, referencing the time before Election Day 2020. “In (some states), voting has already started.”

What he’d like to see in a Supreme Court nominee

Hickenlooper has a lot of experience vetting and choosing judicial nominees. As governor, he chose five of the seven sitting Colorado Supreme Court justices with a mix of liberal and more conservative backgrounds.

If elected to the Senate, he plans to use similar criteria when weighing whether to confirm a nominee to the nation’s highest court.

“We want what I call judicial capacity,” he said. “In other words, you want them to have the intellect and have judicial experience that they know how to approach these really important questions.”

He said he also looks for people with the right temperament, in the sense that they can work well with their colleagues. 

“The Supreme Court has to be collegial. They have to listen to each other to get the best solutions possible,” he said. “This notion where judges come in and they’re completely set in their ways — they already know exactly how they are going to vote on any possible decision — that’s not the way that the Supreme Court was designed to function.” 

Finally, he’d like to see a nominee with “a commitment to civil rights and (the) notion that all people are equal”

Hickenlooper, if elected to the Senate, would likely face pressure from abortion-rights groups to keep their agenda top of mind when voting on whether to confirm a nominee.

“We believe in reproductive rights without government interference, and believe that the senators should be considering that as they evaluate anyone they have in front of them,” said Karen Middleton, president of Cobalt, an abortion rights group in Colorado. Her group has endorsed Hickenlooper’s campaign.

Hickenlooper said that abortion rights, to him, is a matter of civil rights.

“I think Roe v. Wade is an issue around civil rights,” he said of the 1973 U.S. Supreme Court decision guaranteeing women access to an abortion without excessive government restriction. “I think it is a fundamental right of a woman to be able to decide what happens to her body.”

Colorado Sun staff writer Lucy Haggard contributed to this report.


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