If you think that the presidential elections are a roller coaster ride, brace yourself. President Obama's nomination of Merrick Garland to the Supreme Court, and the Republicans' refusal to begin the confirmation process, has set the country on a crash course. The Constitution mandates that the President name a replacement with the advice and consent of the Senate. But President Obama's choice could transform the Court into a liberal majority not seen in two generations. The Republican-dominated Senate wishes to delay the process until after the November elections. Now it is up to us, the voters, to slam on the breaks and to resolve the impasse.
The 2016 elections are quite possibly our most important vote ever. In the next four years, three other justices will be in their eighties. This means that the newly-elected president could end up picking one or two additional members. Whether or not Garland gets confirmed, voting Democratic is the only way to guarantee a liberal court. While a president serves four, or eight years at most, a new Supreme Court will rule for a generation.
Chief Justice Earl Warren led the last liberal court from 1953-1969. The Warren Court strengthened the separation between church and state, desegregated public schools, reapportioned legislative districts to reflect one person, one vote and paved the way for legalizing abortion.
The Court has been drifting to the right ever since. One consequence is an election system that is more malleable. Today, rewriting voting laws for political advantage is harder to prevent. The role of corporate money is significantly enhanced. And in 2000, a politically-charged Court handed George W. Bush the presidency.
The stakes could not be higher. Immediately after Justice Antonin Scalia's death, Senate Majority Leader Mitch McConnell asserted, "It is a President's constitutional right to nominate a Supreme Court justice and it is the Senate's constitutional right to act as a check on a President and withhold its consent." Upon introducing his choice a month later, President Obama stated, "To suggest that someone as qualified and respected as Merrick Garland doesn't even deserve a hearing, let alone an up or down vote . . . that would be unprecedented."
Political rhetoric notwithstanding, Scotusblog has explained that the Senate can set its own rules and that the President can do little to prevent it. Now government gridlock is gnawing at the steps of the Court. The longest ever taken to confirm a Supreme Court justice is 125 days, while the average is 25. This means the wait could be more than 342 days or at least two Supreme Court terms.
President Obama is concerned. During a speech on the Supreme Court last Thursday, he stated, "If confidence in the Courts consistently breaks down, then you start seeing our attitudes about democracy generally starting to break down, and legitimacy breaking down, in ways that are very dangerous."
The Senate's delay tactics have legal consequences. When the Court splits 4-4, it cannot issue a precedential ruling. Instead, it must affirm the lower court's decision or schedule a rehearing for when a new justice is confirmed.
Sometimes the outcome is positive. A recent effort to weaken public unions was thwarted by a 4-4 split. But upcoming cases remain in jeopardy. For example, a lower court struck down the President's executive order on immigration. The order prevents the deportation of approximately five million people, including parents of children who are citizens or permanent residents. A Court split would affirm the lower court's decision and prevent enforcement.
Equally worrisome, a constitutional crisis may loom on the horizon. After the Louisiana election, Presidential Front-runner Donald Trump tweeted, "Just to show you how unfair Republican primary politics can be, I won the State of Louisiana and get less delegates than Cruz -- Lawsuit coming." Mr. Trump could sue if he is dissatisfied with the results of the Republican National Convention. The general election could also be threatened, as happened in 2000. A split court would not adequately resolve either crisis.
The Republicans are putting American democracy at risk in order to get out the vote. Because Garland adheres to legal precedent and practices judicial restraint, his record is mixed on partisan issues. For example, Republicans accuse him of being anti-gun.
The Republican strategy could backfire. In Florida, Illinois, New Hampshire, Ohio, Pennsylvania and Wisconsin, Republican Senatorial candidates may be dependent on the moderate vote. This is because those states re-elected President Obama in 2012. If supporters of Presidential Candidate John Kasich can serve as a proxy for moderates, then a recent survey by Morning Consult is revealing. Fifty-two percent believe that the Senate should vote on Garland, while 36 percent think that he should be confirmed. Only time will tell whether such views translate into a backlash in the voting booth.
The Democratic presidential candidates do not believe that Garland is liberal enough. Both urge the Republican Senate to hold hearings. But in her widely-praised speech on the Supreme Court last week, Secretary Hillary Clinton did not definitely state that Garland should be confirmed. Meanwhile, Senator Bernie Sanders indicated that, if elected, he would pick someone else.
The Democratic candidates' partisan politics are short-sighted. The Washington Post reported that 1.1 million more Republicans than Democrats have voted in the primaries. A loud and clear campaign against Court gridlock and in favor Merrick Garland would help win the presidency and the Senate.
Clearly, the Supreme Court nomination process has become hopelessly political. Reform is in order. But until that happens, the choice is left to us, the voters. This time, our vote is not just for the next four years, it is for the next generation.