Today President Obama fulfilled his constitutional duty by nominating Judge Merrick Garland to succeed Justice Antonin Scalia on the U.S. Supreme Court.
Now the question is whether U.S. Senators will do their jobs by providing Judge Garland with fair consideration, starting with a timely hearing in the Senate Judiciary Committee.
All senators can serve our democracy by doing their jobs.
Less than two hours after the nation learned that one of its nine most powerful jurists passed away unexpectedly, Senate Majority Leader Mitch McConnell announced that he would seek to block President Obama from replacing Justice Scalia on the Supreme Court. Later he doubled down—insisting he would not even meet with any (not yet named) nominee.
Judiciary Chair Chuck Grassley and most of McConnell’s other Republican Senate colleagues have fallen into line. Some have said they’ll meet with Judge Garland—but only to tell him they will not support a hearing. Their blanket obstruction would sustain a vacancy that could cross multiple Supreme Court terms, which is unprecedented in recent history.
Article II, Sec. 2 of the U.S. Constitution says the President shall appoint justices with the advice and consent of the Senate. The rest of the nation missed the footnote where it says “except in the final year of a president the senate majority doesn’t like.”
In fact, there’s nothing unusual about a president nominating or the Senate confirming a Supreme Court justice in an election year. Current Justice and Reagan nominee Anthony Kennedy, for example, was confirmed in an election year by a Democrat-controlled Senate. President Obama has more than 300 days left in his term, and it has never in our nation’s history taken more than 125 days between nomination and confirmation.
Why is a potential delay until 2017 such a big problem? A vacancy undermines the Court’s ability to perform its basic function: providing guidance to the nation (and lower courts) about what the law is.
The Supreme Court touches on nearly every aspect of our lives, and critical cases about workers’ rights, the meaning of the one person, one vote principle, racial equity, and more are currently pending. This provides a clue as to why some senators have dug in their heels: a corporate-friendly, conservative Court is key to Senator McConnell’s objective of preserving power for the one percent at the expense of working families and the rest of America.
But of course appointing a new justice is not just about enabling the Court to address pending cases. It’s also about the direction of the law. And, because of the current Court’s aggressive stance on issues ranging from voting rights to money in politics, it’s about the shape of our democracy. In fact, the Supreme Court’s role in shaping our democracy should be a top priority in nominations hearings.
Just about every time the Roberts Court has considered the basic rules of the road for governing our society it’s made a mess of things—from gutting the Voting Rights Act to shifting power to corporations and wealthy donors in Citizens United and a 2014 follow up case. But, the past ten years have just continued what has been a long slide. This year marks the 40th anniversary of the case that gave us the dubious principle that unlimited spending is a form of free speech and ruled that we cannot limit big money to level the playing field between wealthy donors and the rest of us.
We the People need a justice who understands that the Constitution gives us the power to build a democracy in which every eligible citizen can exercise the freedom to vote; the size of a person’s wallet does not determine the strength of her voice; and wealthy interests cannot translate economic might directly into political power.
Timely hearings in the Senate Judiciary Committee are critical so we can learn Judge Garland’s views on the Court’s role in shaping our democracy.
President Obama has taken the first step. Now it’s time for Senators McConnell and Grassley to step up. Senators, do your jobs.