Since the unfortunate passing of Justice Antonin Scalia on February 13, 2016, the Supreme Court of the United States (SCOTUS) has had a vacancy. Sitting with only eight justices, the Supreme Court has been put in a state that dramatically increases the possibility of ties. With four conservative judges and four liberal judges, there is a much greater chance of the court tying and not being able to reach a verdict. If this outcome occurs, a verdict from the highest court below SCOTUS will stand. With this simple mathematical dilemma in place, SCOTUS vacancies are usually filled relatively quickly; according to the White House government website and the Congressional Research Service, the average time from nomination to confirmation since 1975 is 67 days.
However, it is readily apparent that filling Scalia’s vacancy will be anything but a normal nomination and confirmation process. Within hours of Scalia’s death, Senate Majority Leader Mitch McConnell issued a short statement that concluded with: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” This statement, along with the sentiment of other Republicans in Congress set the stage for a bitter partisan debate regarding the nomination. For weeks, Republicans and Democrats argued over how Obama and the Senate should handle any nominations. The former argued that no nomination should occur and that there would be no hearing since Obama was a “lame duck” president, while the latter argued that having no hearing on SCOTUS nominations was tandem to refusing to complete one’s job and ignoring the historical and legal precedent of the Senate. Obama summarized much of the Democratic Party’s rhetoric when he stated, “Presidents do not stop working in the final year of their term; neither should a senator.”
This partisan battle took its next logical step on March 16 when President Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to be associate justice of the U.S. Supreme Court. Judge Garland was nominated for his relatively non-controversial record and centrist policies (with notable exception to gun rights, EPA regulations and labor laws). He previously was confirmed to the DC Circuit Court on a vote of 76-23 in 1997 and has served as chief judge since February 2013. Having worked with both Democrats and Republicans on cases and legislative matters, one would think that Garland’s nomination would at least be considered. However, this has not been the case, as some Republican leaders in the Senate outright refused to meet with Garland or even plan a hearing.
Republican opposition and refusal to have a hearing with the Senate Judiciary Committee on Garland’s nomination is a deviation from our country’s legal, historical and traditional procedures for SCOTUS nominations during end-of-second-term presidencies. It represents a failure of senators to fulfill their duty as outlined by Article II, Section 2 of the Constitution, which states that: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.” By refusing to even advise or acknowledge nominations by President Barack Obama, the Senate is failing in its duty. The Constitution doesn’t say that nominations and confirmations can only occur during the first three years of a president’s second term.There is not any sort of historical tradition of refusing nominations for such a long period of time, and certain Republicans in the Senate are simply playing politics with SCOTUS. Neither party is or should be allowed to refuse their members’ Constitutional duty when dealing with the procedures outlined in the Constitution with a long legal and historical precedent.
Should Garland be immediately made a Supreme Court Judge? Absolutely not – that’s the point of having a hearing by the Senate Judiciary Committee and the overall Senate. He or any other candidates are supposed to be vetted by this process to determine if they would be effective and prudent judges. Not giving them the opportunity to undergo such a process is ludicrous and childish; it reminds me of a child refusing to play a game because they are losing. Such behavior undermines the whole political system and is a departure from the Senate’s responsibilities.