To the Honorable Dean Heller
United States Senator, Nevada
Dear Sen. Heller:
I read your full statement on the vacancy on the Supreme Court, created by the tragic death of Justice Antonin Scalia, a lion of the law, a lover of the Constitution and a defender of free speech, religious liberty and of the Second and 10th amendments.
Scalia, when a judge on the U.S. Court of Appeals for the District of Columbia Circuit, was very kind to me when I was a new clerk to Judge Roger Robb and fresh out of law school in 1983. Robb fell ill, and his clerks had nothing to do. Scalia and Judges Robert Bork, Ruth Bader Ginsburg, George MacKinnon and Spotswood W. Robinson III hit upon a plan to take care of Terry Ross and me, and we were invited to be clerks for a few cases to each.
Thus I knew Scalia briefly in my youth and admired him throughout my adult life and as a law professor, even though I think he erred greatly in Employment Division v. Smith (a case of massive and terrible consequences.)
I admire Ginsburg for her kindness then as well, and think I glimpsed then the essential goodness of both justices in those brief months. They were friends in the very best sense of the words, a pair of great souls who disagreed on much but loved each other despite those disagreements.
Senator, though I liked you upon meeting you, I do not admire you. Far from it in fact. Admiration depends upon fealty to principles, not likability.
I write this as an explanation that, although what I am about to write is greatly critical of your statement Wednesday, it is nevertheless not a personal attack. I take my stand simply because of the importance I attach to the principles in which I believe, principles that were laid down by the Framers and affirmed by Abraham Lincoln, the first president of the party of which we are both members.
I doubt very much I will be supporting your re-election in 2018. I suspect I will support a primary challenger to you or perhaps even your Democratic opponent. I know for certain that if Sen. Mark Kirk, R-Illinois, votes in any way to advance President Barack Obama’s nominee to replace Scalia I will actively support his Democratic opponent. I’d rather lose the Senate majority with a fight over first principles than the Supreme Court of the United States without a fight.
GOP senators are by and large following the stance taken by Senate Majority Leader Mitch McConnell. “The American people should have a voice in the selection of their next Supreme Court justice,” the senator from Kentucky said. “Therefore, this vacancy should not be filled until we have a new president.”
I want to be fair to you and so reproduce here your entire statement on the issue:
“The chances of approving a new nominee are slim, but Nevadans should have a voice in the process. That’s why I encourage the President to use this opportunity to put the will of the people ahead of advancing a liberal agenda on the nation’s highest court. But should he decide to nominate someone to the Supreme Court, who knows, maybe it’ll be a Nevadan.”
This is, to put it mildly, an “exercise in maximum discretion.” Blunt people might call it “cowardly.” “Originalists” simply will conclude that your one vote among 100 is not worth the effort. They will conclude — on the evidence provided by this statement — that you have no “first principles” that you will defend even at the risk of your seat. I encourage you to change your mind quickly and to become a stalwart defender of the Constitution and thus to state bluntly and calmly: “No nominee of President Obama in his lame-duck year will pass the Senate’s test. The next president will fill Justice Scalia’s seat on the Supreme Court.”
Because your statement Wednesday indicated you are not a fighter, but a word-salad-flinging, finger-in-the-wind pol willing to sacrifice my free exercise rights for your re-election, I have no choice in this matter of whether to support your re-election. Better a Democrat who believes in his or her vision of a “living Constitution” than a jelly-spined Republican who wants to “wait and see” what benefits his or her re-election. Sens. Kelly Ayotte, Ron Johnson, Rob Portman and Pat Toomey did not need to withdraw to their pollsters and tremble. I will spend my energy on their re-elections this year, not on yours in 2018. Unless you change and clarify, and quickly.
It isn’t hard to do. Simply tweet out that you support the majority leader 100% and that you also agree with Sen. Orrin Hatch that there ought to be no hearings regardless of whom the President nominates. #NoHearingsNoVotes is the hashtag that communicates clearly and quickly that you have reconsidered.
Your staff’s efforts to spin your statement have only made the situation worse. The first rule of holes, senator, is to stop digging. Declare “no hearings no votes” as your standard and apologize for throwing the ranks into confusion. Then call Sen. Lisa Murkowski and urge her to do the same, as she walked the same plank Wednesday.
I don’t begrudge senators the time to consider the issue before them. Thus the silence of Sens. Kirk, Jeff Flake, Lindsey Graham and John McCain can be put down to mourning the loss of an American icon, a genuine original, a great man.
But silence isn’t what you chose — and neither will I or millions of friends of the Constitution choose it. Change your mind and defend the Constitution, or lose your job. You have misjudged the stakes. Badly.