When it comes to the Supreme Court, we court-watchers may not know when the justices’ birthdays are, but we sure know how many candles will be on their cakes! We know that Justice Ruth Bader Ginsburg, a powerful liberal voice, is 83; Justice Anthony Kennedy, the much-focused-on swing vote, is 80; and Justice Stephen Breyer, also on the liberal side, is 78.
In every presidential election, the composition of the Supreme Court is high on the list of priority issues for the relatively small group of voters—right and left—who focus primarily on social issues like abortion, guns, separation of religion and state, and civil rights. They understand that Supreme Court justices, serving with lifetime tenure, far outlast the term of the president who appointed them. They understand that the decisions handed down by the highest court have an impact for generations to come—undoubtedly a president’s most long-lasting legacy.
For the majority of voters, the issue of the Supreme Court seems a distant, rather arcane concern (after all, years or decades may pass without a vacancy on the high court, and what does the Supreme Court really do anyway?).
But when there is an actual vacancy on the high court, everyone starts paying attention and the issue rises in saliency. That’s the calculation that the Senate Republicans made back in February when their hero, outspoken conservative Supreme Court Justice Antonin Scalia, died unexpectedly. They determined to deny President Obama—who had 11 months left in his term—the chance to fill Scalia’s chair with a jurist who would invariably flip the narrow 5-4 conservative majority the other way.
Even before Scalia’s body was cold and a month before Obama had even named his pick for the court, Republican Senate Majority Leader Mitch McConnell declared: “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.”
The fact the American people had overwhelmingly voiced their support for the sitting president in the last election meant nothing to the Republicans who jumped on the bandwagon with their leader and vowed to block even a hearing on whomever President Obama would name.
The fact that Article II of the U.S. Constitution clearly obligates the president to make appointments to the Supreme Court to which the Senate must advise and consent meant nothing to senators who had sworn an oath to uphold the Constitution.
The fact that the president’s nominee, Judge Merrick Garland, had previously been mentioned by Sen. Orrin Hatch (R-UT) as a “consensus nominee” who would easily be confirmed meant nothing even to the senators who ultimately bowed to constituent pressure and deigned to hold a meeting with the nominee.
And most disturbingly, the fact that a Supreme Court minus the ninth justice cannot properly do its job in all cases—to render decisions that unite the country under one legal precedent—meant less than nothing.
Many months before the recent election, there were murmurs from some Republican senators that if Hillary Clinton prevailed, they might consider moving on Judge Garland’s nomination in a lame duck session (fearful that her choice to fill Scalia’s seat would be even more reliably liberal than Garland’s record shows him to be). As the election got closer, many Republicans warned the electorate that they would refuse to confirm any of Secretary Clinton’s judicial nominees.
Now we have a Republican president-elect, a continuing Republican majority in the Senate—albeit with two fewer seats, and promises all around that the divided country will be united and that the Senate will strive for bi-partisanship.
President Obama has, with grace and generosity, paved the way for a smooth turn-over of the White House and Executive Branch for the new administration, a move met with seemingly genuine gratitude on the part of the president-elect.
But, as they say in the real estate business (which the incoming president knows well): the Supreme Court vacancy should not convey!
In the interests of turning over a nation with its institutions—including the judiciary—in good shape and working order, the Senate should make confirming Judge Merrick Garland a top priority before the 114th Congress ends. To do less is to begin a new era in government and the history of our nation with a controversy guaranteed to exacerbate divisiveness in the country and endanger the ability to govern.