The Supreme Court, The Republicans, And Democracy

supreme courtWithin an hour of the news of Justice Antonin Scalia’s death on February 13, Senate Majority Leader Mitch McConnell, R-Ky., ruled out Senate consideration of any U.S. Supreme Court nominee until the inauguration of the next president in 2017. This obstructionist tactic has the support of nearly all Senate Republicans, including Iowan Charles Grassley, chair of the Judiciary Committee.

The Constitution gives the president the power to appoint Supreme Court judges with the advice and consent of the Senate. But Republicans on the Judiciary Committee have made clear their unwillingness to even hold hearings or vote on Obama’s nominee, Merrick Garland, a brilliant and highly regarded centrist judge. This denies Garland a fair hearing.

The Constitution says nothing about when a president can appoint a person to fill a federal court vacancy. One-third of all presidents have appointed a Supreme Court judge in an election year.  The GOP gambit amounts to an abdication of the Senate’s constitutional duty. Conservative columnist George Will refers to the Republican response to the Supreme Court vacancy as “a partisan reflex in search of a justifying principle.” He rejects the party’s refusal to consider Merrick Garland as one based on a “preposterous premise” that “radiates insincerity.”

The reasons for the stall do appear purely partisan. Even before Scalia’s death, GOP leaders in the Senate were delaying confirmation votes on many of the President’s lower court nominees.

Conservatives are delaying the confirmation of judicial nominees until after the next presidential election, when they hope to have a more conservative president making appointments. According to McConnell, blocking any consideration of the President’s nominee gives the people a voice in filling the vacancy. But the selection is about an appointment, not an election. Besides, the people have already spoken by electing Obama twice. Ironically, McConnell accuses Obama of politicizing his selection when actually McConnell and his fellow Republicans have put the election before their constitutional obligations.

This nefarious Republican tactic means the Senate negates its constitutional obligation of advice and consent on the nomination. The Constitution contains no exception to those obligations for presidential years or off-years.

With the court now composed of four conservative and four liberal justices, the result of a 4-4 tie could be a default upholding of regional circuit courts or state supreme courts. A recent such deadlock means that an appellate decision to uphold union “fair share” fees as constitutional stands.

Some circuit courts could make federal law for the entire nation. Or lower courts could disagree over how to interpret constitutional rights. If circuit courts disagree, Americans could essentially find themselves in a chaotic situation with different speech, property, or due process rights depending on where they live.

The Supreme Court is poised to rule on a series of critical and divisive issues, including immigration, affirmative action, religious freedom, women’s health, voting districts. But without nine justices, the nation’s lower court judges could have the final say on many controversial issues.

What GOP Senators are doing is more than a dereliction of duty. It actually amounts to an unconstitutional act. Keeping a vacancy open for what likely will be two full Supreme Court terms is unprecedented, extraordinarily reckless and shows a blatant disrespect of the rule of law, the third branch of government and the American people.

Polls indicate that a majority of the American people oppose the Republican blockade. They want the Senate to hold hearings and vote on Garland’s nomination. That is what should happen.

Ralph Scharnau
March 31, 2016


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