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Merrick Garland Supreme Court nomination

Following the February 2016 death of Associate Justice of the Supreme Court Antonin Scalia, President Barack Obama nominated Merrick Garland to fill Scalia's seat on the Supreme Court on March 16, 2016. At the time of his nomination, Garland was the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. Scalia's death led to an unusual situation in which a Democratic president had the opportunity to appoint a Supreme Court nominee while the Republicans controlled the United States Senate; before Scalia's death, such a situation last occurred when a Senate Republican majority confirmed Grover Cleveland's nomination of Rufus Wheeler Peckham in 1895.[1] Conversely, in February 1988, during an election year, the Democratic-controlled Senate confirmed Anthony Kennedy, who was the Republican President Ronald Reagan's nominee for the Supreme Court, though Kennedy had been nominated in November 1987 to replace Lewis Powell who was nominated by Richard Nixon, and the vacancy had occurred in June 1987.[2]

Political commentators widely recognized Scalia as one of the most conservative members of the Court, and noted that a more liberal replacement could shift the Court's ideological balance for many years into the future. The confirmation of Garland would have given Democratic appointees a majority on the Supreme Court for the first time since the 1970 confirmation of Harry Blackmun.[3] After the death of Scalia, Republican Senate leaders announced that they planned to hold no vote on any potential nomination during the president's last year in office.[4] Senate Democrats responded that there was sufficient time to vote on a nominee before the election.[5] Garland's nomination expired on January 3, 2017, with the end of the 114th Congress. The nomination remained before the Senate for 293 days,[6] the longest nomination process in the history of Supreme Court nominations.[7] With the failure of Garland's nomination, President Donald Trump, a Republican, successfully nominated Neil Gorsuch in 2017.[6]

Contents

BackgroundEdit

In 1986, President Ronald Reagan nominated D.C. Circuit Judge Antonin Scalia to the Supreme Court to fill the vacancy caused by the elevation of William Rehnquist to Chief Justice. Scalia was unanimously confirmed by the Senate and became a part of the court's conservative bloc, often supporting originalist and textualist positions.[8] On February 13, 2016, Justice Scalia was found dead at the Cibolo Creek Ranch in Shafter, Texas.[9][10] Scalia's death marked only the second time in sixty years that a Supreme Court justice had died in office, the other being Chief Justice Rehnquist in 2005.[11] Scalia's death was also the seventh occasion since 1900 in which a seat on the Supreme Court of the United States was vacant during a year in which a presidential election was set to occur.[12]

Article II of the U.S. Constitution gives the president the power to nominate, and subject to the "advice and consent" of the Senate, appoint justices to the Supreme Court. At the time of Scalia's death, the sitting president was President Obama, a member of the Democratic Party, while the Republican Party held a 54–46 seat majority in the Senate.[13] Because of the composition of the Supreme Court at the time of Scalia's death, and the belief that President Obama could replace Scalia with a much more liberal successor, some believed that an Obama appointee could potentially swing the Court in a liberal direction for many years to come, with potentially far-reaching political consequences.[14]

Ensuing political conflictEdit

The situation led to conflict between the White House and Republican leadership. Republican leaders have claimed that the vacancy should not be filled until after the next president is elected,[15] and threatened that the Republican-controlled Senate might delay the appointment of a new justice until after the inauguration of a new president.[16] Republicans cited a 1992 speech by then-senator Joe Biden, arguing that if a Supreme Court seat became vacant during the summer, President Bush should wait until after the election to appoint a replacement, or else appoint a moderate acceptable to the then-Democratic Senate. Little-noticed at the time, Republicans began to refer to this idea as the "Biden rule". Biden responded that his position was, and remained, that the President and Congress should "work together to overcome partisan differences" regarding judicial nominations.[17]

Democrats countered that the U.S. Constitution obligates the president and Senate to nominate and confirm a new Supreme Court justice in a timely manner, while Republicans explained how the Senate was fulfilling its obligation of advice, saying the next president should make the appointment. As there were 11 months remaining in President Obama's term at the time of Scalia's death, the Democrats argued that no precedent exists for such a lengthy delay, as previous presidents have nominated individuals in election years.[18] Democrats also argued that even if such a precedent exists, President Obama's term had sufficient time remaining such that the precedent should not apply. The precedent, known as the Thurmond rule, dates back to the President Lyndon B. Johnson's 1968 nomination of Abe Fortas to the Supreme Court, and has been inconsistently applied.[19][20]

Should there be a Senate recess of sufficient length, the president has constitutional authority to make a recess appointment of a new Supreme Court justice.[21] Any justice so appointed would be eligible to remain on the Court until either the end of the subsequent Congress's first session, or until the Senate consents to a permanent replacement. Members of the Obama administration stated that President Obama did not have any plans to make a recess appointment.[22]

On February 23, 2016, the 11 Republican members of the Senate Judiciary Committee signed a letter to Senate majority leader Mitch McConnell stating their intention to withhold consent on any nominee made by President Obama, and that no hearings would occur until after January 20, 2017, when the next president takes office.[23] The 11 members are Committee Chair Chuck Grassley, Iowa;[24] Orrin Hatch and Mike Lee, Utah; Jeff Sessions, Alabama; Lindsey Graham, South Carolina; John Cornyn and Ted Cruz, Texas; Jeff Flake, Arizona; David Vitter, Louisiana; David Perdue, Georgia; and Thom Tillis, North Carolina. By March 30, 29 Republicans had said they would not consider Judge Garland after the November election.[25]

In an August 2016 speech in Kentucky, Senator McConnell said, "One of my proudest moments was when I looked Barack Obama in the eye and I said, 'Mr. President, you will not fill the Supreme Court vacancy.'"[26][27][28]

Scholars and lawyers urging Senate to consider a nomineeEdit

On February 24, 2016, a group of U.S. constitutional-law scholars sent an open letter to President Obama and the U.S. Senate urging the president to nominate a candidate to fill the vacancy and the Senate to hold hearings and vote on the nominee.[29] The letter, which was organized by the progressive American Constitution Society, stated that it would be "unprecedented" for the Senate to fail to consider a Supreme Court nominee, and "would leave a vacancy that would undermine the ability of the Supreme Court to carry out its constitutional duties."[29] The signatories wrote: "the Senate's constitutional duty to 'advise and consent'—the process that has come to include hearings, committee votes, and floor votes—has no exception for election years. In fact, over the course of American history, there have been 24 instances in which presidents in the last year of a term have nominated individuals for the Supreme Court and the Senate confirmed 21 of these nominees."[29][30] Among the 33 professors signing the letter were Dean Erwin Chemerinsky of the University of California, Irvine School of Law; Adam Winkler of the UCLA School of Law; Kermit Roosevelt III of the University of Pennsylvania School of Law, and Gene Nichol of the University of North Carolina School of Law.[30]

In a letter sent to President Obama on March 3, 2016, a different group of predominately progressive scholars of American history, politics, and the law wrote to President Obama to "express our dismay at the unprecedented breach of norms by the Senate majority in refusing to consider a nomination for the Supreme Court made by a president with eleven months to serve in the position."[31] The scholars wrote that:

It is technically in the power of the Senate to engage in aggressive denial on presidential nominations. But we believe that the Framers' construction of the process of nominations and confirmation to federal courts, including the Senate's power of "advice and consent," does not anticipate or countenance an obdurate refusal by the body to acknowledge or consider a president's nominee, especially to the highest court in the land. The refusal to hold hearings and deliberate on a nominee at this level is truly unprecedented and, in our view, dangerous...
The Constitution gives the Senate every right to deny confirmation to a presidential nomination. But denial should come after the Senate deliberates over the nomination, which in contemporary times includes hearings in the Judiciary Committee, and full debate and votes on the Senate floor. Anything less than that, in our view, is a serious and, indeed, unprecedented breach of the Senate's best practices and noblest traditions for much of our nation's history.[31]

Signatories to this letter included, among others, Thomas E. Mann, senior fellow at the Brookings Institution; Norman J. Ornstein, resident scholar at the American Enterprise Institute; presidential historian Doris Kearns Goodwin; Pamela S. Karlan of Stanford Law School; Yale Law School professor Harold Hongju Koh; Geoffrey R. Stone of the University of Chicago Law School; and historian James M. McPherson of Princeton University.[31]

On March 7, 2016, a group of 356 law professors and other legal scholars released a letter (organized through the progressive judicial advocacy group Alliance for Justice) to the Senate leadership of both parties urging them "to fulfill your constitutional duty to give President Obama's Supreme Court nominee a prompt and fair hearing and a timely vote." The letter-writers argued that Senate Republicans' announcement that they would refuse to consider any Obama nominee was a "preemptive abdication of duty" that "is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government."[32] Among the signatories to this letter were prominent law professors Charles Ogletree, Kenji Yoshino, and Laurence Tribe.[32]

On March 9, 2016, in a letter to Obama and Senate leadership, a group of almost 250 prominent corporate lawyers urged the Senate to hold hearings on the president's nominee.[33] The letter stated that "When a vacancy on the court arises, the Constitution is clear ... Article II, Section 2 states that the President 'shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court' ... Though the Senate may ultimately choose not to consent to the president's nominee, it would be unprecedented for the Senate to refuse to perform its 'advice and consent' role in this context. Not only does the Constitution direct the sitting president to nominate an individual to fill a vacancy on the court no matter whether it is an election year, nearly one third of all presidents have nominated a justice in an election year who was eventually confirmed."[33] The letter, organized by the Lawyers' Committee for Civil Rights Under Law,[34] also expressed concern about the "profound effect" about the effects of an under-staffed Court on the national economy, particularly in close cases.[33] Signatories to the letter came from a number of national law firms, and well as counsel for Google Inc..[34]

On March 10, 2016, the Democratic attorneys general of 19 states, Puerto Rico, and the District of Columbia released a letter to Obama and Senate leadership in both parties calling for prompt Senate action on the president's nominee.[35] The letter stated that "the states and territories have a unique and pressing interest in a full and functioning Supreme Court" and that refusal to consider a nominee would "undermine the rule of law and ultimately impair the functioning of state governments."[35]

In March 2016, former Utah governor Jon Huntsman Jr., a Republican, and former Connecticut U.S. senator Joseph Lieberman, an independent, both co-chairs of the problem-solving group No Labels, wrote that "There is no modern precedent for the blockade that Senate Republicans have put in place. Even highly-contentious nomination battles in the past, including those over Robert Bork and Justice Clarence Thomas, followed the normal process of hearings and an up-or-down vote. Leaving the current blockade in place could leave a seat on the Court vacant for the remainder of this term and perhaps the next as well, which could leave major cases in limbo until 2018. That is simply not acceptable. We cannot let today's crisis of leadership turn into a full-blown constitutional crisis."[36]

In March 2016, John Joseph Gibbons and Patricia Wald, the former chief judges of the Third Circuit and D.C. Circuit, respectively, warned that the Senate's refusal to act on a Supreme Court nomination "would set a dangerous precedent, and invite attempts to extend it to other situations where the Executive and the Legislative branches are in political conflict with one another." Gibbons was appointed by a Republican president, while Wald was appointed by a Democratic president.[36][37]

In April 2016, a letter signed by sixty-eight of Garland's former law clerks urging his confirmation was delivered to Senate leaders. The Washington Post summarized the letter as painting "a familiar portrait of Garland as a careful judge, a hardworking public servant and a devoted family man." The former clerks wrote: "There are not many bosses who so uniformly inspire the loyalty that we all feel toward Chief Judge Garland. Our enthusiasm is both a testament to his character and a reflection of his commitment to mentoring and encouraging us long after we left his chambers."[38]

Law professors Robin Bradley Kar and Jason Mazzone, in a May 2016 study published in the NYU Law Review Online, called the situation "unprecedented," noting that the Senate had never before transferred a U.S. President's appointment power in comparable circumstances to an unknown successor.[39][40][41] Over 150,000 people signed a White House petition asking President Obama to independently appoint Garland to the Supreme Court, espousing the theory that the Senate had waived its advise and consent role.[42]

On November 17, U.S. District Judge Rudolph Contreras threw out a lawsuit against Senator McConnell seeking to compel a vote on the nomination, finding that the plaintiff, who had simply alleged he was a voter, had no standing to sue.[42]

Scholarly and legal counterargumentsEdit

George Mason University law professor Ilya Somin argued the Constitution imposes no such duty upon the Senate to hold confirmation hearings and to give a nominee an up-or-down vote.[43] Jonathan H. Adler agreed, writing that while he personally has "long argued that the Senate should promptly consider and vote on every presidential judicial nominee, ... there is no textual or historical basis" for the contention that the Senate has a constitutional obligation to do so.[44] Eugene Volokh argues that there has not been a "constant practice of Senators agreeing that every nominee should be considered without regard to there being a looming election" and that "in the absence of such a practice, we come down to more results-oriented politics."[45] George Mason University law professor David Bernstein argued that while "preexisting constitutional norms" would suggest that "hearings and eventual votes on Supreme Court nominees" were mandatory, this norm is not required by the constitutional text and has been undermined by recent political practice.[46]

Bernstein also noted that a Democratic-controlled Senate in 1960, in reaction to President Eisenhower's 1956 recess appointment of William J. Brennan Jr., passed a Senate resolution "Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court's business."[47] Noah Feldman, a constitutional law professor at Harvard Law School, has said "it's hard to argue that [the Constitution] requires the [Senate] to put a nominee to a vote."[48] Vikram Amar, constitutional law professor and dean of the University of Illinois College of Law, wrote that "the text of the Constitution certainly does not use any language suggesting the Senate has a legal obligation to do anything," but that the "absolutist position" taken by Senate Republicans presents "grave risks" of escalating the judicial-appointment process into "extreme moves and countermoves."[49]

Nomination processEdit

Speculation about candidates to fill vacancyEdit

Prior to Obama's nomination of Garland, media commentators speculated about individuals who may be nominated to fill the vacancy on the Court. A number of writers argued that the Senate Republicans will continue to block the confirmation process regardless of the nominee, and suggested that Obama may as well choose a candidate for political motives. For instance, Michael Tomasky suggested that a nomination of Mariano-Florentino Cuéllar may encourage Latinos to vote in the November 2016 election and "alter the presidential race dramatically as well."[50] Tom Goldstein, arguing that "[t]he nomination itself is part of the president's legacy, even if partisan politics prevents confirmation," recommended to nominate a black woman to encourage black and female voters to participate in the election.[51] Goldstein concluded that the most likely candidate of such description was Ketanji Brown Jackson.[51]

Other commentators suggested that Obama should compromise by selecting a centrist or even moderate conservative candidate. After analyzing voting trends for Supreme Court nominees since the confirmation of Hugo Black in 1937, political scientists Charles Cameron and Jonathan Kastellec explained that "even an ideological twin of Justice Stephen Breyer—the most moderate of the court's current liberals—would fail to get even a majority of votes in the current Senate".[52] Without naming potential nominees, Cameron and Kastellec concluded that the Senate would only approve "a highly qualified moderate."[52] In this vein, Senate Minority Leader Harry Reid suggested the nomination of Republican Governor Brian Sandoval.[53][54] However, Sandoval soon withdrew his name from consideration.[55] Zachary A. Goldfarb and Jeffrey Toobin speculated that Obama might nominate Sri Srinivasan because he "has the sort of impeccable credentials that are much beloved by the Supreme Court bar" and that his reputation as a moderate liberal may appeal to conservatives in the Senate.[56]

By early March 2016, Obama reportedly scheduled interviews with five candidates—Merrick Garland, Ketanji Brown Jackson, Jane L. Kelly, Sri Srinivasan, and Paul J. Watford—before narrowing the list down to three candidates: Srinivasan, Garland, and Watford.[57] Obama's ultimate selection of Garland was a surprise to prediction markets; on the PredictIt market, traders predicted that Srinivasan would be the nominee, trading as high as 97% on this outcome.[58]

Garland was widely seen as a leading contender for a nomination to the Supreme Court in the Obama administration following the announced retirement of Justice John Paul Stevens in 2010.[59][60][61] In 2010, Obama interviewed Garland for a Supreme Court vacancy ultimately filled by Elena Kagan.[62] At the time, Senator Orrin G. Hatch, Republican of Utah, publicly said that he had urged Obama to nominate Garland as "a consensus nominee" who would win Senate confirmation.[63][64]

On March 11, 2016 (five days before President Obama nominated Judge Garland), Senator Hatch said: "The President told me several times he is going to name a moderate, but I do not believe him. [...] [Obama] could easily name Merrick Garland, who is a fine man. He probably will not do that because this appointment is about the election. So I am pretty sure he will name someone the [liberal Democratic base] wants."[65] Also on March 11, 2016, Hatch said that refusal to now consider any Obama nominee to the high court was "the chickens coming home to roost"; he cited historical episodes as well as old quotations from Democratic U.S. Senators to explain why.[65][66]

Nomination of Merrick GarlandEdit

 
Garland meeting with Democratic U.S. Senator Al Franken
 
Merrick Garland with Republican U.S. Senator Susan Collins

On March 16, 2016, President Obama nominated Merrick Garland, the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacant seat on the Court.[67] At 63 years, 124 days of age, Garland was the oldest Supreme Court nominee since Lewis F. Powell Jr. in 1971, who was nominated by Richard Nixon at age 64 years, 32 days.[68] In a formal Rose Garden ceremony, Obama—flanked by Garland and Vice President Joe Biden—stated: "I have selected a nominee who is widely recognized not only as one of America's sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence. Presidents do not stop working in the final year of their term; neither should a Senator."[67] Obama stated: "To suggest that someone as qualified and respected as Merrick Garland does not even deserve a hearing, let alone an up-or-down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise—that would be unprecedented."[67] Garland then briefly spoke, stating that "fidelity to the Constitution and the law have been the cornerstone of my professional life" and promising to "continue on that course" if confirmed for the Supreme Court.[67]

Minutes after the President announced Garland's nomination, the White House released a biographical video of Garland, featured old photographs of Garland and his family, an interview with the judge, and archival footage of him at the scene of the Oklahoma City bombing, which Garland investigated.[69] In the video, Garland said: "When I am standing with the President and he announces my nomination, I actually think it is going to feel a little bit like it is an out-of-body experience."[69] Following this, Orrin Hatch said: "I think well of Merrick Garland. I think he is a fine person. But his nomination does not in any way change current circumstances."[70]

U.S. Senator from Arizona Jeff Flake said in March 2016 that Garland should not be confirmed unless Hillary Clinton wins the 2016 presidential election. He argued that should Clinton win, Garland should be confirmed in the Senate's lame-duck session because he is less liberal than any nominee Clinton might put forward.[71][72] After meeting with Garland in April, Flake reiterated this position, saying that confirmation hearings on Garland's nomination should not be taken up until after the election, so that the American people can choose the next president, unless Clinton wins, in which case, "we ought to approve him quickly."[73][74] Orrin Hatch echoed this sentiment, saying that he was "open to resolving this [Garland's nomination after a Clinton win] in a lame duck [session in December]."[75]

By early April, two Republican U.S. Senators, Jerry Moran from Kansas and Lisa Murkowski from Alaska, after weeks earlier expressing support for proceeding with hearings as a part of the nomination process, had reversed their positions, saying that they now opposed hearings on Garland's nomination.[76] Two other Republican U.S. Senators, Mark Kirk of Illinois and Susan Collins of Maine, have expressed their support for hearings and an up-or-down vote on Garland, with Collins also supporting Garland's nomination.[74] Some Republicans, including Ted Cruz and John McCain, suggested that the Senate might not confirm any nominee to replace Scalia, particularly if Democrats retain control of the presidency.[77]

On May 2, eight former Solicitor General of the United States endorsed Garland as "superbly qualified", including Republicans Paul Clement, Gregory G. Garre, Theodore Olson, and Ken Starr.[78] On June 21, the American Bar Association's Standing Committee on the Federal Judiciary granted Garland its "well-qualified" rating. Commenting on his integrity, the ABA noted: "Most remarkably, in interviews with hundreds of individuals in the legal profession and community who knew Judge Garland, whether for a few years or decades, not one person uttered a negative word about him."[79]

Garland's nomination expired on January 3, 2017, with the end of the 114th Congress, after languishing 293 days.[6] Donald Trump, the 45th President of the United States, consistently opposed the nomination of Garland.[80] After taking office, Trump nominated Neil Gorsuch to fill the Supreme Court vacancy caused by Scalia's death, and Gorsuch was confirmed by the Senate in April 2017.

Effect of vacancy on rulingsEdit

Scalia's death left the court with eight judges for a majority of its 2015 term and the beginning of its 2016 term, and the vacancy was the second-longest since 1900.[77] With the vacancy persisting for some time, the Court showed a reluctance to accept new cases.[81] The Court's slow pace in accepting new cases reflected "an increased cautiousness considering the real possibility of 4–4 deadlocks on anything ideologically divisive."[81] From the time of Scalia's death in late February 2016 until the first week of April 2016, the Court accepted only three cases, none likely to be controversial. By contrast, over the previous five years the Court took up an average of eight cases over the same period.[81]

For cases that were not decided before his death, Justice Scalia's votes were not counted, with the cases decided by the remaining eight members of the Court.[82] When the Court issues any ruling with votes split 4–4, the Court does not publish a written opinion with respect to the merits of the case and the ruling of the lower court is affirmed, although the Court's affirmance have no effect as precedent in future cases.[82][83]

Citing the Court's practices following the death of Justice Robert H. Jackson in 1954, Tom Goldstein of SCOTUSblog suggested in February 2016 that the Court was more likely to set evenly-divided cases for reargument after a new justice is appointed to the Court.[84] However, the Court split 4–4 in at least five cases of the 2015 term:

See alsoEdit

ReferencesEdit

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  4. ^ Levy, Gabrielle. "Even GOP Voters Think Senate Should Confirm SCOTUS Nominee", U.S. News and World Report (March 31, 2016): "Because Obama has less than a year left in his term, McConnell said, he should not get to make a lifetime appointment..."
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  47. ^ David Bernstein (February 13, 2016). "Flashback: Senate Democrats in 1960 pass resolution against election-year Supreme Court recess appointments". The Washington Post. Retrieved March 21, 2016. 
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Further readingEdit

  • Devins, Neal; Baum, Lawrence (2017). "Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court". Supreme Court Review. Forthcoming. SSRN 2432111 .