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Both Colorado Senate nominees reversed SCOTUS seat opinions; Does it matter?

Sen. Cory Gardner and former Gov. John Hickenlooper have different opinions on filling an empty Supreme Court seat than they did four years ago. Does that matter?

DENVER — Is a change of position automatically a flip flop? And does a voter care?

In a late Monday statement, Sen. Cory Gardner (R-Colorado) said he approves moving forward with filling the Supreme Court vacancy left open following the death of Justice Ruth Bader Ginsburg.

"When a President exercises constitutional authority to nominate a judge for the Supreme Court vacancy, the Senate must decide how to best fulfill its constitutional duty of advice and consent. I have and will continue to support judicial nominees who will protect our Constitution, not legislate from the bench, and uphold the law. Should a qualified nominee who meets this criteria be put forward, I will vote to confirm," said Gardner.

In a similar situation in 2016, Gardner and Senate Republicans were on the other side, opposing the process to move forward to fill a vacant Supreme Court seat.

"We stand at a pivotal point in our nation’s history. The Obama Administration continues to use the judicial and regulatory systems to push through its legislative agenda, shifting the balance of power that our Founders established. That is why the next president of the United States should have the opportunity to fill the vacancy on the Supreme Court. In 1992, even then-Senator Joe Biden stated the Senate should not hold confirmation hearings for a Supreme Court nominee until after that year’s presidential election. Our next election is too soon and the stakes are too high; the American people deserve a role in this process as the next Supreme Court Justice will influence the direction of this country for years to come," Gardner said on March 16, 2016.

   

Justice Antonin Scalia died in February 2016, just less than 10 months before the November election. President Barack Obama nominated Judge Merrick Garland to fill Scalia's seat, but the Republican-controlled Senate took no action until after the inauguration of President Donald Trump.

In 2016, then-Gov. John Hickenlooper joined Democrats in saying the Senate should consider Garland.

Now, in 2020, the roles are reversed. Most Senate Republicans, including Gardner, want to move forward, while Hickenlooper, now running for Senate, is joining Democrats saying to wait until after the next president is sworn-in.

"We need to make sure that Sen. Gardner upholds the commitment he made four years ago," said Hickenlooper. "The Senate must not confirm a new Justice until the American people have weighed in at the ballot box and until the President elected in November has the opportunity to make this decision."

Does it matter that the position of both Gardner and Hickenlooper are reversed what they were in 2016?

"On the surface, it may look like 2016 is the same as 2020, but it's not. And it's oversimplified to say that this is the same situation," said Novitas Communications CEO Michelle Lyng.

Lyng creates political ads for ballot issues. She used to make political ads for candidates. She said that in 2016, the Democratic president was in his final year with a Republican-controlled Senate.

Now, it's a Republican president and Republican-controlled Senate.

In 2016, Gardner didn't make that distinction in his quote, but in his news release, there was a bullet point at the bottom that said, "A Senate of a different party than the President has not confirmed a Supreme Court nominee during a presidential election year since 1888."

That's not entirely accurate.

In June 1987, Justice Lewis Powell retired. President Reagan was a Republican and Democrats controlled the Senate. His retirement happened more five months before Reagan would be serving his last year. However, the Democratic-controlled Senate wouldn't end up confirming a nominee until Feb. 1988, within the presidential election year.

How much will today's statements impact voters?

"It really doesn't matter among Republican and Democratic registered voters in Colorado, but it does matter among some unaffiliated voters," said pollster David Flaherty.

Flaherty runs conservative-leaning Magellan Strategies in Louisville.

He estimates about one-in-10 voters will consider both Gardner and Hickenlooper equally, whereas the other nine will make their choice based on the party affiliation next to the candidate's name.

"Where before it was about health and safety and keeping the economy open during COVID and putting food on the table, that's now going to take a backseat in the short term and be more about a woman's right to choose, and issues that really do drive both Democrats and Republicans out to vote and really pay attention," said Flaherty.

Are there levels of flip-flopping?

Last year, Hickenlooper announced he was running for Senate after dropping out a presidential race in which he repeatedly made statements like, "Being Senator would be meaningful, but I'd hate it," and "I don't think I'm cut out for that."

"There's different degrees of changing of opinions or lying, if you will," said Flaherty. "In our polling, John Hickenlooper as he's running for president saying, 'the last thing I'm going to do is go to the Senate, I don't want to be there,' and then he ends up running for the Senate, that's a little bit different in the sense where voters will be like, 'he changed his mind, he's a politician, I understand why he changed his mind. That really doesn't matter to me, I still want to know what John Hickenlooper says he's going to do in the U.S. Senate if elected.'"

"I think truth matters. I have two children, I would never tell them anything other than that, right?" said Lyng. "I think what it comes down to is whether something is defensible, whether it's fact-based."

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