WASHINGTON, March 20, 2016 — Supreme Court nominees’ lives matter. After the violent deaths of several black men, a protest movement arose using those two last words. The Republican refusal to hold hearings and vote for current U.S. Supreme Court nominee Judge Merrick Garland is not on the same level of significance as the deaths of human beings, but it is outrageous nonetheless.
The political vitriol that has effectively plagued our country since tea party Republicans were elected has now stepped into an arena that simply cannot be justified.
The president of the United States has done his job – he has nominated a replacement to fill the vacancy on the Supreme Court left by the recent death of Justice Antonin Scalia. But the U.S. Senate is not doing its job. That body is required to hold hearings on the nomination and then vote on the president’s nominee.
The Republicans’ failure to act is not only reprehensible; it is without justification in either common sense or precedent.
Republicans claim that they want to wait until after the election in November to allow the new president to choose the nominee, thus giving the “people” a voice in the decision. This president was elected and has approximately 25 percent of his current term remaining. The people elected him. The argument is not the same as it would have been if Justice Scalia passed this coming October.
Presidents are elected to four-year terms, not three. When the American people voted in 2012, they gave President Obama the right – as it is stated in the Constitution – to nominate a replacement for the vacancy on the Supreme Court.
Senate Majority Leader Mitch McConnell said, “Give the people a voice.” But in refusing to consider the president’s Supreme Court nominee, he silences the one voice the people have already chosen. Republicans are not trying to give people a voice. They are instead practicing petty partisan politics and ripping off taxpayers by choosing not to do their jobs.
The Republican claim that there is precedent for their failure to act would almost be funny, were it not so outrageous. Senate Majority Leader McConnell created a fictional rule (“the Biden rule”), citing a comment made by then-Judiciary Chairman Joe Biden in 1992, when George H.W. Bush was president.
Biden’s floor speech on June 25, 1992, more than three months later in that year’s election cycle than it is now, is not in any world analogous to the circumstances that exist now, yet Republicans offer it as a precedent. (A precedent is an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.)
At the time of Biden’s speech, there was no Supreme Court vacancy to fill. There was no nominee to consider. Yet, we are now being told there is a “rule” where none existed. The “rule” was created as a smokescreen to justify blatant political partisanship. The Senate has never voted on, much less adopted a rule to delay the consideration of a nominee until after an election.
Biden did not argue for a delay if a vacancy were to surface, until the next president began his term, as McConnell is doing. Biden said that if a vacancy were to develop, if a Justice were to resign, the nomination process should be put off until after the election, which was on Nov. 3, 1992. Based on Biden’s comments, it is clear he would not have objected if Bush nominated someone the day after election day, giving the Senate more than two and a half months to vote on confirmation.
The core issue here is not about the nominee. Judge Garland may well be an excellent candidate, and he may not. However, that is for the Senate to decide by taking a vote. The issue is about the process.
The Republican mindset here is simply wrong, and it denies the American people their constitutional right to the full effect of their government; namely, the benefit of a Supreme Court operating at full strength and capable of deciding the issues of the day. The current eight-justice array means the possibility of 4-4 decisions. This array risks the delay or even the denial of finality in matters of extreme importance to those involved, to those who might be affected in the future who would rely on the law and to the American people who have a right to have laws established.
The Republican thinking on this matter is warped and is a huge gamble. With their party in shambles, the thinking nonetheless appears to be that a Republican candidate will win the election and that the Senate will maintain its majority, thus allowing the eventual ascension of a conservative justice to the Supreme Court bench.
The obstructionist strategy of refusing hearings and a vote on this nominee is most likely going to alienate voters, resulting in the loss of the Republicans’ current Senate majority. Republicans do have some leverage now. They can try to force a more moderate replacement for Justice Scalia. But they may not have that power in a few months. If Hillary Clinton or Bernie Sanders wins the presidency in November, either can choose a justice who is considerably more liberal than Garland.
The new host of “The Daily Show,” comedian, former radio host and actor Trevor Noah, recently mocked Republicans for what he called “this nonsense” and offered that Mitch McConnell “seems like a bit of a dick, just in principle, not as a person.”
Indeed. Judge Merrick Garland, having been offered the highest honor any judge could imagine, is on the best high of his life, celebrating, glowing, feeling as good as anyone has ever felt. Then McConnell calls him and tells him to forget it.
Totally classless. Good call, Trevor.
What makes this situation all the more heinous is that it apparently is the voice of a few senators in leadership positions, along with their no-backbone followers, that are in control. Numerous prominent conservatives, including some who served under or were nominated by President George W. Bush, have publicly expressed support for Judge Garland’s nomination and have called for hearings and a vote.
Former President George W. Bush’s Attorney General Alberto Gonzales said it best:
[I]nstead of simply refusing to act, I urge Senate Republicans, when prepared, to provide a hearing and floor vote.… With due respect to my fellow Republicans, this is not only about allowing American voters to express their will. Many voters are truly uninformed about the role or work of the Supreme Court, and relatively few will cast their vote based on a presidential nominee’s views of the court… However, instead of simply refusing to act, I urge Senate Republicans, when prepared, to provide a hearing and floor vote. The president has nominated someone who is capable of doing the job by virtue of intellect, education and experience. Judge Garland has a reputation for integrity and likely has the character to withstand the scrutiny that comes with the confirmation process. So if Republican senators were to oppose his nomination it would legitimately be based on ideology or the manner in which the nominee will discharge his oath as a federal judge” (USA Today, 3/16/16).
The obstructionist Republican strategy we are regretfully having to watch is highly likely to backfire, with the result that the next Supreme Court Justice, if not Judge Garland, will most probably prove to be much more liberal.
Paul A. Samakow is an attorney licensed in Maryland and Virginia and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.Click here for reuse options!
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