U.S. Senator Ben Cardin

Letters From Ben

January 29, 2022

Vacancy 

January 29, 2022

Dear Fellow Marylander:

As Supreme Court Justice Stephen Breyer formally announced his upcoming retirement at the White House this week, he reminded Americans that we live in a diverse country with diverse experiences and diverse opinions.

In his remarks, while reflecting on what he learned during his nearly three decades on the high court, he said, “… this is a complicated country. There are more than 330 million people and my mother used to say it’s every race, it’s every religion — and she would emphasize this — and it’s every point of view possible.”

Justice Breyer has built a reputation and cemented a legacy as a champion of civil rights. He also fought to protect American consumers and our democratic system of government from attempts to undermine our campaign finance system and weaken the sacred franchise of the right to vote. His thoughtful scholarship of the importance of safeguarding human rights and respecting international law will continue to influence democratic governments around the world for years to come.

When I think about a successor to Justice Breyer, I want to see someone who can serve as a strong and thoughtful presence on a court that is tasked with addressing some of the most complicated legal problems and questions in our nation. Each new justice is someone who could serve for a generation or more, and have a profound impact on the lives of all Americans for decades to come. He or she will make decisions on a broad range of issues, such as voting rights, health care, women’s reproductive freedoms, equal rights for women, climate change policy, gun safety, campaign finance, civil rights issues, and so much more.

A nominee should represent the values of our Constitution in such a way that allows us to expand, not restrict, the civil rights of all Americans, and keep powerful special interests and corporations in check. The U.S. Constitution is not a perfect document, but its authors designed a system of government around the rule of law and protection from abuses of power. Abuses could come from special interests or the government itself. Our Constitution created the Supreme Court of the United States as a protector of our constitutional rights.

A justice should have a healthy respect for the separation of powers, and checks and balances in our constitutional system. A nominee should strive to safeguard the independence of the judiciary and protect the prerogatives of each branch of government, including Congress and its duly enacted laws.

A strong nominee must be respectful of the diversity of the American experience and live up to his or her judicial oath not only to uphold the Constitution and laws of the United States but to “administer justice without respect to persons, and do equal right to the poor and to the rich.”

President Biden, who has an incredible group of highly qualified candidates from which to choose, said this: “The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue, in my view. I made that commitment during the campaign for president, and I will keep that commitment.”

Thus far, 115 Justices have served in our nation’s history, including Baltimore’s own Thurgood Marshall, who was the first Black Supreme Court Justice. It is long past time to improve the diversity on our nation’s high court, which promises “equal justice under law” to all those who enter its hallowed chambers. 

The Supreme Court and its justices should look more like the America it serves, including its demographic and professional diversity.

In Maryland, for years I have worked diligently when vacancies arise to recommend highly qualified lawyers that will better diversify our federal bench. Our federal district court in Maryland consists of 10 active District Court judges who sit in Baltimore and Greenbelt. I am proud that our court reflects the breadth and depth of demographic and professional diversity in Maryland, including the first Black woman to serve as a federal judge in Maryland and the first Asian-American federal judge in Maryland. Half of the active District Court judges in our state are now women.

The late Supreme Court Justice Ruth Bader Ginsburg – only the second woman ever to serve on the Supreme Court – was asked how many women should be on the Supreme Court. Her response: “I’m sometimes asked, ‘When will there be enough women on the Supreme Court?’ And I say, ‘When there are nine.’ People are shocked. But there’d been nine men, and nobody’s ever raised a question about that.”

I am confident that the Senate – under the leadership of Majority Leader Chuck Schumer and Judiciary Committee Chairman Dick Durbin – will conduct a fair and expeditious vetting, hearing, and confirmation process for President Biden’s pick to replace Justice Breyer. Like many of you, I remain bitterly disappointed in the double-standard used by Senate Minority Leader Mitch McConnell and Senate Republicans in filling Supreme Court vacancies – blocking Merrick Garland from even having a Senate hearing and then rushing through Amy Coney Barrett for confirmation eight days before an election when more than 60 million Americans had already cast a ballot.

The damage done by Leader McConnell, undermining public faith in the independence and legitimacy of the Supreme Court as an independent body, not to mention the integrity of the U.S. Senate, will be long lasting.

For all these reasons, I look forward to working with my colleagues in the Senate over the coming months to give fair consideration to President Biden’s nominee to replace Justice Breyer. I am hopeful that you also will be proud of the process that unfolds in the Senate, as you watch and learn more about the Constitution and our three branches of government that interact in this unique process. The end goal is to select the highest qualified individual who will bring their experience and perspective to our highest court.

Thank you for your time. Stay well. Get your booster shot!

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Ben Cardin


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