I hesitate to write about anything political, but today I enter the fray – not to talk about politics, but about something that should not be political, but has become so: The Supreme Court vacancy. The Judiciary is one of three branches of our government; the House of Representatives and the Senate comprise the legislative branch, and the President and administration make up the Executive branch. I am more than irritated that one branch of government – the legislature – is trying to highjack the other two.
Justice Scalia died last month, leaving a vacancy on the Supreme Court. The Constitution provides in Article 2 Section 2: “[The President] … shall nominate, and by and with the Advice and Consent of the Senate, …, shall…appoint… Judges of the supreme Court …” One of the first things we learned in law school is the meaning of “shall.” It means exactly what it says. “Shall” is a mandate, so President Obama must now appoint a judge to the Supreme Court, and the Senate should give its advice and consent. There should be no ifs, ands, or buts about it.
So I find it odd that only a few hours after Justice Scalia’s death, Senator Mitch McConnell, the leader of the Republican party in the Senate, said that the people, by electing a new President, should choose who should pick the new Justice. In 2012, whether you like it or not, the people chose, by over 5,000,000 votes, who should make the next Judicial appointment, and no cutoff day exists for exercising that Presidential power. Additionally, the next President won’t be available for almost a year, leaving one-third of our government unable to function properly. Who loses? The people.
Real people have cases in the Supreme Court right now, people whose lives will turn one way or another depending on what the Court says. Should any of those decisions be adjudged with four Justices on one side and four on another, the lower court ruling will stand, meaning that the aggrieved person has no further recourse.
Nevertheless, Mitch McConnell, and most, if not all, the Republican Senators have said that not only will they not vote on a new Justice, they will not hold hearings, where the nominee answers questions about his or her background and judicial philosophy, and they will not even meet with the nominee. This includes Senator Roy Blunt from Missouri, who, according to CNBC’s John Harwood’s tweet, said this: “GOP Sen Blunt on not meeting w/Garland: ‘I can barely schedule a call with my son’s math teacher so probably no’” (http://www.kansascity.com/opinion/opn-columns-blogs/yael-t-abouhalkah/article66617702.html).
Senator Orrin Hatch has said that Democrats would behave in the same manner; however, “On November 30, 1987, President Ronald Reagan … nominated Justice Anthony Kennedy … A Democratic-controlled Senate confirmed Kennedy … on February 3, 1988, by a vote of ninety-seven to zero” (http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/).
The President has now appointed Judge Merrick Garland to fill the vacancy. Judge Garland has a very impressive history, working in the Justice Department for years, leading the investigations into the Unabomber and the Oklahoma City bombing. He was confirmed by the Senate for the Federal judgeship in 1997, and according to Mary Sanchez, seven of the Senators who are now refusing to meet with him, listen to him, or vote for him, voted to confirm him as Federal Judge (http://ireader.olivesoftware.com/Olive/iReader/KCSPress/SharedArticle.ashx?document=KCS%5C2016%5C03%5C17&article=Ar00200).
I saw Judge Garland accept the President’s nomination. He was gracious and humble, and he actually choked up when he said that day, other than the day his wife agreed to marry him, was the best day in his life. How sad that it will be marred by Senators, heady with power, refusing to do their Constitutional duty. For a party that claims it values the Constitution, this seems beyond disingenuous.
Is it any wonder that the election process is in such uproar right now?
I often disagree with the President and the Supreme Court; however, I respect the law that assigns their powers, and so I do what the law requires, regardless of how I feel about it. I think the Senate Republicans should do the same.
Deborah Mitchell is a a local attorney and a Municipal Court Judge.