Appointing the Next Supreme Justice

Last week, President Obama nominated Washington, D.C., federal appeals Judge Merrick Garland to the Supreme Court seat left vacant by the death of Justice Scalia. According to observers, Garland, 63, is a centrist with almost two decades of judicial experience. If he is confirmed, Garland is unlikely to add diversity to the Court, nor a liberal shift. His record is one of a pragmatist, not a pathfinder. He would be an uncontroversial candidate who should be easily confirmed.

At the ceremony in the Rose Garden, the President said: "Our Supreme Court really is unique. It's supposed to be above politics. It has to be. And it should stay that way." Anticipating an adverse reaction from Senate Republicans, the President added, "To suggest that someone as qualified and respected as Merrick Garland doesn't even deserve a hearing ... would be unprecedented." 

Under the Constitution, it is now the Senate judiciary committee’s role to consider the nomination, providing the requisite advice and consent to decide whether Garland should be confirmed to the Supreme Court. However, since Scalia's death, Senate Judiciary Committee Chairman Chuck Grassley and Senate Majority Leader Mitch McConnell have repeatedly stated they will not consider any nominee, arguing that whoever wins the general election in November should name the next justice.

There is Presidential authority that when the Senate is in recess, the vacancy can be filled. If the Senate is by-passed, the appointee can only serve until the end of the following Senate session.  The Supreme Court itself clarified that power in June, 2014, in National Labor Relations Board v. Noel Canning. However, I doubt that Mr. Obama would risk a recess appointment. His nature is to face down an opponent, not go round him.

Senator Al Franken tore into the Republicans for their threat to block the President’s pick, saying their arguments reminded him of his past life as a comedian on Saturday Night Live. “I used to make a living identifying absurdity,” Franken said at the start of a fiery speech in a Senate Judiciary Committee hearing. “I’m hearing a lot of it today.”

Franken has ammunition. Last week, on the floor of the Senate, Democrat Pat Leahy stated: “The Constitution is very clear that we can’t walk away from a constitutional responsibility when it comes to a vacancy on the Supreme Court.” Leahy’s colleague, Senator Richard J. Durbin, agreed. “The Senate shall advise and consent by voting on that nominee. That is what the plain language of the Constitution requires.”

The Republican case that a President has no right to nominate a Supreme Court justice in the final year of his term is bunk. A Minnesotan lawyer friend of mine told me, “In the past 100 years, there have been 19 Supreme Court Justices who were nominated and confirmed in an election year, including Scalia himself.  The others were Kagan, Alito, Breyer, Souter, Rehnquist, Blackmun, Goldberg, White, Warren, Vinson, Murphy, Reed, Roberts, Cardozo, Hughes, Sutherland, Clarke and Brandeis.”

Presidential obligations exist under the Constitution. The chief executive “shall have power, by and with the advice and consent of the Senate…to appoint …Judges of the Supreme Court.” In addition, the President shall appoint “all other officers of the United States not otherwise provided for.”

The Article does not say “the President may appoint.” Instead, there is a requirement placed upon the chief executive. Furthermore, the Article does not restrict the chief executive from carrying out the obligations of his office in the final year of his term. If that were so, every President would be constrained in his fourth year of office, not just the eighth year.

The Senate Republicans are playing politics with the Supreme Court. They want another Scalia in the vacant seat and seem to want to use every weapon to achieve their aims. However, they should remember the American public does not like it when the executive and legislative branches play the political game using the Court as a pawn. In 1937, President Roosevelt put forward his Court Packing Plan to make sure the second New Deal legislation would pass. In a Democratic controlled Congress, the plan failed, giving FDR a bloody nose, damaging badly his second term. The public wanted business as usual with the Court, not more appointees.

Also, the Republicans should take care about hand-picking their nominee. In 1953, President Eisenhower nominated Earl Warren as the new Chief Justice. After all, Ike thought, Warren was “one of us.” Ike looked on with astonishment as Warren presided over a liberal, reforming Court which, for example, desegregated public schools. Ike is reported to have yelled at his aides, “If I knew the son of a bitch was like this, I’d never have nominated him.”

If the Senate Republicans are wise, they will give Garland a hearing and a vote on the merits. But since when is the current crop of Senate Republicans replete with wisdom?