Supreme Court Justice’s Death Poses Problem for Executive
March 16, 2016
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“[The President] shall nominate, and with the Advice and Consent of the Senate shall appoint Judges of the Supreme Court,” the United States Constitution, Article 2 Section 2.
The recent death of Supreme Court Justice Antonin Scalia has thrown a curveball into the 2016 Presidential race. Both sides are asking, who should get to nominate the new justice?
Justice Scalia, a notoriously conservative, strict constructionist, died on February 13 of natural causes at the age of 79. His death has left the Court with only eight justices, four of whom are liberals and four of whom are conservatives. If the Court remains this way for the foreseeable future, most cases will end in a tie.
Justice Scalia’s death has left many politicians asking who should have the power to nominate the new justice. Should President Barack Obama have the power? Or should the power be given to the winner of the 2016 presidential election?
The answer is simple, the U.S. Constitution clearly states that the current President has the power to nominate Supreme Court Justices. Despite this, many are arguing that because President Obama’s term is coming to an end, the so-called “lame duck period”, he should not be allowed to exercise this constitutional power. Instead, they argue the new president, who will be elected this November, should get to nominate a new justice.
However, nothing officially states that a president should not or cannot nominate a justice during his lame duck period. A situation like this has simply never happened before. In theory, there is nothing stopping President Obama from nominating a new justice, which he has the right to do.
“I plan to fulfill my constitutional responsibilities to nominate a successor in — due time,” President Obama said in a press release after Scalia’s death. “There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.”
According to the U.S. Constitution, any candidate for Supreme Court Justice must be confirmed by the Senate. While in theory everything may seem simple, in reality the Republican-controlled Senate is refusing to even acknowledge any candidate that the President puts forward as his nominee.
The Senate has made it very clear that they will not hold any hearings or conduct any votes on a new Supreme Court Justice until President Obama is out of office, a decision that has angered many Democrats.
This decision, according to Senate Majority Leader Mitch McConnell, is “based on constitutional principle and born necessity to protect the will of the American people.” However, many, including some Republican senators are citing alternative reasons.
In 1992 then Delaware Senator and chairman of the Senate Judiciary Committee Joe Biden, our current Vice President, stated that if a vacancy should occur on the Supreme Court during an election year, the President should not name a nominee until after the November election. He also said that if the President were to nominate a candidate, the Judiciary Committee should strongly consider not holding a hearing until the end of the election.
While this was a hypothetical situation, the irony is now the Republicans are using this so called “Biden Rule” as means to block any nominations. Biden is now calling on the Senate to work together and listen to any nomination made by President Obama.
According to the twentieth amendment, after the November election, the old president holds all constitutional power until noon on January 20, after this the newly elected president takes the oath and gains the powers delegated to the President by the Constitution.
This means that if the Senate refuses to hear any nominations until after President Obama is out of office, it will leave the Supreme Court with only eight members for over three months. With only eight members, there is a great possibility for cases to end in a tie. If this happens, the decision made by the appellate court stands.
If this were to happen, it would render the Supreme Court useless. People take their cases to the Supreme Court in hopes of getting a new ruling, and the court cannot function if cases continuously end in a tie.
The Republican Senate faces two options: they can allow President Obama to nominate a justice or they can wait until the new President has been inaugurated into office and run the risk that the newly elected President may also be a Democrat.
It is just not a feasible option to leave the Court with only eight members for such a long period of time, especially with them divided evenly between liberal and conservative. If the Senate wants the Supreme Court to function properly, then they must accept a nomination made by President Obama.
While the Senate has acknowledged that President Obama has the constitutional power to nominate any person he would like to be the new Justice, they also need to acknowledge his nominee in order to keep the Supreme Court functioning.
President Obama has nominated Merrick Garland as the new Supreme Court Justice as of 11 a.m. today. Garland currently serves as the Chief Justice for the U.S. Court of Appeals for the D.C. Circuit.
He is viewed by many as a centrist judge, meaning under any other circumstances, the Republican Senate probably would have confirmed his nomination with little argument. However, these are not normal circumstances.
Despite his moderate views, McConnell has said that the Senate will not consider Garland as the nominee, instead they say that they will revisit the issue next January when the new President takes office. However, President Obama is demanding that the Senate give a fair hearing for Garland in hopes that they will allow his nomination.