Ignoring constitutional duty would dishonor Justice Scalia
The death of Justice Antonin Scalia leaves only eight justices on the Supreme Court to hear and decide some of the most consequential cases in decades.
In less than a month the Supreme Court is scheduled to hear a case that could severely erode women’s ability to access reproductive health care services. In January, the court heard a case that could have serious consequences for public unions and the survival of the middle class.
And before the end of the court’s term, the justices are slated to decide on President Obama’s immigration programs — DAPA (Deferred Action for Parental Accountability) and expanded DACA (Deferred Action for Childhood Arrivals) — putting in limbo the lives of millions of families who fear losing a loved one to deportation.
As much as there was at stake with nine justices on the bench, there is even more at stake with only eight. A Supreme Court that is divided 4-4 upholds the lower court decision by default, and such a decision has no precedential value. Even if one believes the lower court decisions in these cases are correct, a Supreme Court that cannot set precedent should be an unacceptable result.
The president indicated he would name a nominee and the Senate must perform its constitutional duty, providing full advice and consent. To hold up the nomination purposefully, as many are already suggesting, would threaten the stability of the law and the integrity of the court. More important, it is a violation of the trust of the American people.
In modern times, it is an unusual occurrence for a Supreme Court justice to pass away during his or her time on the bench. But the Senate has never neglected to perform its constitutional duty to hear and vote on the presidents’ Supreme Court nominees, even when the vacancy occurred during a presidential election year.
Seventeen Supreme Court justices since the 1800s have been confirmed during presidential election years. It has never taken more than 125 days for the Senate to confirm a Supreme Court nominee, with the average time between presidential nomination and a Senate vote being 67 days. With more than 300 days left in Obama’s term, it would be a gross aberration and an abdication of an enumerated constitutional duty to refuse to confirm a new justice.
The Constitution does not equivocate on when the president and Senate are tasked to work together to appoint federal judges. The Constitution takes judicial vacancies seriously and requires the president to appoint nominees whenever vacancies arise. It tasks the Senate with providing advice and consent on those nominees.
Yet, we are living through the most obstructionist Senate in recent history. As of Feb. 11, there are still 85 federal judicial vacancies throughout the federal district and appeals courts. This means major backlogs on courts throughout the country as judges shoulder an increasingly unmanageable caseload, which leads to justice delayed — and too often denied — for the American people.
With nearly a full year left in the Obama administration, Senate Republicans had already indicated that they were done with their work on judicial nominees. Unfortunately, as news of Scalia’s death spread Saturday, the leadership of the Republican party went about ripping up the Constitution. These statements made it clear that Republicans have no intention of fulfilling their duty of giving a qualified nominee a vote in the Senate.
Americans are tired of their elected leaders succumbing to petty and partisan whims of a small, vocal minority.
There is little debate about Scalia’s respect for the Supreme Court and the Constitution, and his service to our country was long and distinguished. His impact on the law was enormous. If Republicans truly want to honor Justice Scalia, they would follow decades of history and tradition, and put aside partisan politics to ensure we have a fully functioning Supreme Court.
The American people deserve more than politics from the Senate. They deserve lawmakers who will abide by their constitutional duties.
Michele L. Jawando is vice president for Legal Progress, a project of the Center for American Progress. She wrote this for InsideSources.com.