Scotus

Senate’s Job is to Consider the President’s Nomination to the Supreme Court

As chief nominations counsel to Senator Patrick Leahy, I worked on the Senate Judiciary Committee’s consideration of the last five nominations to the U.S. Supreme Court.  On the day we learned of Justice Scalia’s death, I believed the focus would be on his life and legacy, as it had been upon the death or resignation of justices in the past.  Instead, the Republican Senate leadership immediately declared that they would not allow the Senate to consider any person nominated by President Obama to fill the vacancy created on the Supreme Court.  This is a stunning position, contrary to the history and practice of the Senate’s constitutional role on Supreme Court nominees.

The spurious initial claim that Presidents are never allowed to fill Supreme Court vacancies in presidential election years should have ended with a simple Wikipedia search that turned up Justice Anthony Kennedy’s unanimous confirmation in 1988, the final year of President Reagan’s term.  As Senator Lindsey Graham, a well-respected Republican member of the Judiciary Committee admitted recently, an across-the-board prohibition against a President appointing a Supreme Court Justice in the final year of a term would set a new and dangerous precedent.  

The President reached out to Republican and Democratic Senators to consult and has now fulfilled his constitutional duty by nominating Chief Judge Merrick Garland of the DC Circuit.  Judge Garland’s qualifications for the Supreme Court look like something out of central casting.  After graduating with honors from Harvard Law School, he clerked for two legendary legal giants-- Second Circuit Judge Henry Friendly and Supreme Court Justice William Brennan.  During his career as a federal prosecutor, Merrick Garland led the investigation and prosecution of Timothy McVeigh for the tragic Oklahoma City bombing.  

In nearly two decades on the DC Circuit, Judge Garland has developed a bipartisan reputation as a smart, fair and impartial judge.  As the Chief Judge of a unique court that handles complex and controversial cases, that is not easy.  Along the way, numerous Republicans, including former Judiciary Committee Chairman Orrin Hatch, have cited Chief Judge Garland as the kind of consensus nominee who should be confirmed to the Supreme Court.  

With more federal judicial experience than any Supreme Court nominee in history, it is wrong to declare that the Senate should not consider Chief Judge Garland’s nomination, the way it has for every nomination in the modern era.  The Judiciary Committee’s process for considering Supreme Court nominations is both thorough and consistent.  When I worked for the committee, the Senate followed the same process for considering President Bush’s nominations of Chief Justice Roberts and Justice Alito as we did for President Obama’s nominations of Justice Sotomayor and Justice Kagan.  Over the last 40 years, it has taken Supreme Court nominations an average of 70 days from nomination to a vote on confirmation.  In fact, for the last 100 years, the Senate has taken action on every pending Supreme Court nominee to fill a vacancy, including confirming five of them during presidential election years.

Having been one of the staffers responsible for the nuts and bolts of the process for Supreme Court nominees, I know there is more than enough time for a thorough and fair review of Judge Garland’s qualifications.  More than enough time for Senators to meet with the nominee.  More than enough time for Senators and their staffs to review any and all relevant records, craft questions, and hold a fair hearing.  And more than enough time for the 100 men and women elected to serve as U.S. Senators to do their jobs of offering advice and consent on Chief Judge Garland’s nomination.

The central legitimate question Senators of both parties seek to answer about any nominee for a lifetime judicial appointment is whether that nominee can take off whatever hat they were wearing—whether that of an advocate, a professor, a prosecutor, a defender— and put on the unbiased robe of a judge, able to be fair and just.  With Chief Judge Garland, we do not have to guess.  We know the answer. As an outstanding judge on the DC Circuit for nearly two decades, he has done the job.  By any historical standard, he is a well-qualified, well vetted, consensus nominee. 

In accordance with its normal process, the Senate should allow Chief Judge Garland the opportunity to answer questions in an open, transparent and fair hearing, and could complete its work and have an up or down vote on his nomination by Memorial Day, well in advance of the election.  Denying him the normal process of consideration afforded to every Supreme Court nominee of the last century is far out of step with the way the Senate has acted and should act in accordance with its constitutional responsibility.

The Constitution is very clear on this score.  Article II, Section 2 states plainly that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.”   The key word there is “shall.”  The Constitution does not say “should” or “if they get around to it.”  It is the President’s duty to nominate, as President Obama has now done.  It is the Senate’s duty to consider the nomination, which is what the Senate’s Republican leadership declares they will not do.  

This is about the shared constitutional responsibility of the President and the Senate to ensure that the Supreme Court is at full strength and able to provide justice for the American people.  The critical nature of the Supreme Court is shown by the fact that it is the only court established by the text of the Constitution itself.  Americans on all sides of the spectrum should expect the 100 Senators to do their jobs of considering Chief Judge Garland’s nomination and voting it up or down.  

During my time in the Senate, I saw Senator Leahy continue more than a century of practice on Supreme Court nominations. He worked with Senators from both sides of the aisle to move Supreme Court nominees forward, whether nominated by a Democratic President or a Republican, and whether he supported them or not.  It would be wrong to change that now.

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