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Sen. Joe Manchin

Photo: Michael Brochstein/Zuma Press

I am extremely disappointed by your editorial’s characterization of my remarks concerning this unprecedented process to place a justice on the U.S. Supreme Court (“Joe Manchin’s Marshall Mistake,” Oct. 7). The facts are clear—never before in the 240 year history of our country has the president nominated and the Senate confirmed a Supreme Court justice between July and Election Day in a presidential election year.

Your editorial cites the confirmation of Chief Justice John Marshall that occurred after the election of 1800. The example of a post-election confirmation highlights my point. Mitch McConnell and Senate Republicans have promised Judge Amy Coney Barrett will be confirmed before this year’s Nov. 3 election, so we are not debating a post-election confirmation vote.

As you state, Chief Justice Marshall was confirmed “in January 1801, after [President John] Adams and the Federalists lost the ugly 1800 election to Thomas Jefferson and the Democratic-Republicans.” Look at the timeline. Justice Marshall was appointed to the vacancy created by the resignation of Chief Justice Oliver Ellsworth on Dec. 15, 1800, the month after the presidential election. Adams nominated Marshall on Jan. 20, 1801, two months after the election. The Senate confirmed Marshall’s nomination a week later, again, well over two months after the election. You are confusing a confirmation two months after an election with a confirmation two months before an election.

The distinction matters because the people had a chance to speak in 1800. After a long, bitter campaign, the American people decided that they wanted to go a different direction and elected Thomas Jefferson. The American people of 2020 deserve the same opportunity as the American people of 1800. They helped us right the ship back then, and I, for one, believe they can do it again.

You don’t offer a single example of a president nominating and the Senate confirming a Supreme Court justice with so little time remaining before a presidential election. That is because there are none. This would be the first time in history.

I will not allow my words to be distorted in an attempt to suggest this particular confirmation is business as usual. If the Senate confirms the nomination of Judge Amy Coney Barrett to the Supreme Court, it will be the first time the Senate has done so mere days before a presidential election. This nomination must wait until after the election. It’s that simple.

Sen. Joe Manchin III (D., W.Va.)

Charelston, W.Va.

My take on the partisan Sen. Manchin is that he does not want to vote for the distinguished Amy Coney Barrett for the highest court in the land. However, when I taught the history of the Supreme Court and stressed that we must assuredly go back and revisit Marbury v. Madison, the 1803 case which awarded the court the right of judicial review through Chief Justice John Marshall’s craftiness. That is a chimera, and during the Constitutional Convention and ratification debates of 1787-88 it did not exist. As the late Justice Antonin Scalia said: “We made it up.”

God bless America.

Joel Marks

Florence, Ore.

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