Louis Brandeis’ record for longest delay between nomination and confirmation to fall
It has been four months since the death of Justice Antonin Scalia, and the Supreme Court still has only eight sitting justices. On March 16, 2016, President Barack Obama nominated Merrick Garland to fill Justice Scalia’s seat. In the three months since, Senate Republicans, who comprise control the Judiciary Committee, have refused to hold a hearing or vote on Garland’s nomination. Instead, the fifty-four Republican senators are waiting to see the results of the 2016 Presidential election before considering Scalia’s replacement. In 1916, Louis Brandeis waited 125 days between nomination and confirmation. Garland will surpass that record on July 20th. Textually, is the Senate obligated to hold nomination hearings? As mentioned previously, we must look at the Appointment Clause, Article II Section 2 of the Constitution, which reads, “The President… shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.” Regarding the Clause, there has been significant debate as to whether “shall” applies to both the President and to Senate, or just to the President. If it applies to both, the Senate would be required to hold hearings, yet with no further obligations to confirm President Obama’s nominee. Some, however, interpret the Appointment Clause to mean that the Senate’s lack of action is equivalent to their lack of consent to Garland’s appointment. Some also note that the Constitution is not intended to change senatorial or presidential obligations during an election year. American politics has achieved polarization not often seen, as evidenced by the preserved ability of past presidents to successfully nominate justices to the Supreme Court in the midst election years. The White House shares, “One-third of all previous U.S. presidents have had a nominee confirmed to the Supreme Court in an election year.” Historical support reveals how the Senate and the President have acted in similar past circumstances. Overall, textualist arguments regarding the Framers’ wording of the Constitution leave many questions unanswered, as it is truly difficult to infer exactly what the Framers intended to with the Appointment Clause. Is a nomination hearing obligatory regardless of senatorial approval of a nominee, or could the Senate’s refusal to act be synonymous to a lack of consent? According to the White House, “Since 1875, every Supreme Court nominee has received a Senate hearing or a vote.” However, as a historical counter-point, Adam White notes, “Presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations, the vast majority of them, 25, received no up-or-down vote.” In the end, it is important to note how political the appointment process has become. Of President Obama’s Supreme Court nominee, the White House emphasizes, “as Chief Judge of the D.C. Circuit, Judge Garland has more federal judicial experience than any other Supreme Court nominee in history.” Yet, three months since his nomination, Merrick Garland has still not received a fair hearing opportunity. As it has become clear that the 2016 presumptive presidential nominees are Hillary Clinton and Donald Trump, it will be interesting to see if the Senate Republicans remain strong in their stance. Several Republicans have come out against comments made by Republican presidential nominee Donald Trump, while others have called upon the party to unendorse him as their party’s nominee. Others, still, are hoping for some miracle to come from July’s Republican National convention. Will the Republican party’s disapproval of Donald Trump impact how the Senate acts as the election approaches? If Clinton wins, it is likely that she will nominate a more liberal justice than the moderate Merrick Garland, while Trump’s suggestions for a Supreme Court Justice include Steven Colloton and Raymond Kethledge, who both clerked for conservative Supreme Court Justices. Although exactly what the Framers intended by the Appointment Clause can be debated, it is apparent that in regard to the Supreme Court, they sought a body of decision makers untainted by the harms and corruption of politics. It is my hope that in the future, the Senate can once again consider Supreme Court nominees for their qualifications, rather than for their political affiliations. It will truly be interesting to see how this appointment process unravels as we approach November 8.