Harvard Law School

1563 Massachusetts Avenue

Cambridge, MA 02138

We, the undersigned students, alumni, faculty, staff, and student organizations of Harvard Law School, urge the Law School to publicly oppose the appointment of a new Justice to the Supreme Court before Inauguration Day.

The Presidential and Congressional votes of the American people will be counted in a matter of weeks. Given mail-in and early voting, the election itself is already underway. But rather than listening to the American people, Senate Majority Leader Mitch McConnell intends to fill the Supreme Court seat left vacant by the passing of Justice Ruth Bader Ginsburg. This is blatant hypocrisy: when Justice Antonin Scalia died nine months before the election, McConnell refused to give Judge Merrick Garland a hearing, citing the impending election. There, the election was months out; here, the election has already begun. We urge Harvard Law School to take a principled stand—and honor the dying wishes of Justice Ginsburg, whom this institution claims to mourn—by demanding the Senate postpone any confirmation votes until after Inauguration Day.

The democratic legitimacy of our judiciary is in peril. After blocking dozens of President Obama’s judicial nominations—including to the Supreme Court—the Senate has allowed President Trump to appoint hundreds of federal judges, including two Supreme Court Justices, despite never commanding a popular majority. Jamming through a third Justice, on the eve of an election that many neutral observers expect will forcefully rebuke both the President and the Republican Senate, would be beyond the pale. Add to this that the Senate is prioritizing political gain over an effective response to a global pandemic, which has killed over 200,000 Americans and left tens of millions without jobs, and the Senate’s actions become unconscionable. This letter merely calls for Harvard Law School, among the most powerful institutions in the legal community, to acknowledge the blatant travesty we all see unfolding before us. Harvard’s rebuke of these actions would not only prompt other powerful institutions to speak up, but would assure those of us affiliated with the School that its commitment to fairness and good governance is more than mere lip service.

The Senate was intended by the Framers of the Constitution to be a deliberative, decorous body that sat above the political fray. It was entrusted with solemn duties, not least of which being confirming members of the judiciary to lifetime appointments. The Court can roll back policies that are supported by democratic majorities. The Court can reduce or expand the government’s ability to conduct oversight. The Court tells the government when and how it may enter our bedrooms. To ensure that these powers—and the judiciary itself—bear legitimacy, the Senate must act with care and must consider the will of the people. Forcing through a Supreme Court nominee under present circumstances would do just the opposite: it would violate the Senate’s oath to faithfully discharge its duties and would stain the legitimacy of the Court, the Senate, and American government at large. We ask the Law School to say as much.

While we recognize that this would be an extraordinary statement for a law school to make, these are extraordinary times. If the Law School cares about the legitimacy of the Court, if it wants its students to believe in the rule of law and advocate for equal justice, if Dean Manning truly hopes that we “honor” and “celebrate” the values that Justice Ginsburg embodied, then we ask: how can the Law School be silent now?

We urge Dean Manning and Harvard Law School to condemn the actions proposed by the President and Leader McConnell, and provide a statement to the Senate and Senate Judiciary Committee, demanding that they keep the seat open until the next President is inaugurated in January.

Sincerely,

Harvard Parity Project, harvard@peoplesparity.org