The unexpected death of Supreme Court Justice Antonin Scalia on February 13 has opened up a partisan debate between President Barack Obama, who has indicated that he will nominate someone to fill the vacant seat, and the Republican-controlled Senate, which has vowed not to act on any such nomination. At stake is the ideological makeup of the Supreme Court, which in the wake of Scalia’s death, is now deadlocked with four conservative justices and four liberal ones.
The following article represents the “pro” argument; click here for the “con” argument.
Enough with the partisan gridlock
Mitch McConnell and the Republican leadership in the Senate should not obstruct President Obama from nominating a Supreme Court Justice to fill the current vacancy left by the late Antonin Scalia. Not because the Constitution requires it or because Republicans are inherently wrong and Democrats are inherently right. It should be withdrawn because compromise is essential to a functioning democracy.
Does anybody remember the word “compromise”?
Over the past two decades, each party has used every parliamentary trick in the rulebook to systematically block judicial nominees from the other party. Barack Obama, Hillary Clinton, Ted Cruz, and Marco Rubio have all done so as Senators. Both parties have, are, and will continue to engage in open hypocrisy to score petty political points.
Back in 2008, when the parties’ roles were reversed so that George W. Bush was the lame duck president and Democrats controlled the Senate, it was the Republicans who were preaching that there’s no such thing as the “Thurmond rule,” an informal understanding that no lifetime appointments should be made during a president’s final six months in office.
The stakes have been raised
While invoking the Thurmond Rule is nothing new, there are two unique aspects to the current impasse: how much time remains before the next president takes office, and the Republican threat to block the entire nominating process.
As for the first, there are about 11 months before the next president is sworn into office. If Republicans are successful in delaying an Obama nomination, the vacant Supreme Court seat might not be filled until mid-2017, forcing the court to operate for 16 months (or longer) without a full contingent. Any decisions during this period resulting in a 4-4 tie would waste judicial resources and leave important legal questions unresolved.
But the second aspect and the precedent it would set are far more pernicious. Until now, there has never been an opposing-party Senate that has successfully used the Thurmond Rule. Slowdowns are common to judicial confirmations, but complete obstruction to the process is not.
If the Republicans’ proposed strategy works, it could lead to total paralysis anytime a Supreme Court Justice dies while one party controls the presidency and the other controls the Senate. At first the Thurmond Rule might only apply to the last year of a presidency, as in this case. But what’s to stop either party from expanding it to the final two or three years in office. Or why even bother to wait for the end of the first term? It’s a recipe for exponential gridlock, along with an unacceptable pile up of court vacancies.
The dynamic is already in action. The unprecedented judicial vacancy crisis currently decimating the federal judiciary has 103 open seats, one-third of which have existed for over 18 months. It seems both parties have concluded that judicial vacancies are preferable to fully staffed courts if some of those benches will be filled with nominees from the other party.
A return to sanity
It hasn’t always been this way. For most of U.S. history, with rare exceptions, Supreme Court confirmations usually took a few days. The longest vacancy ever only lasted 125 days.
The American public elected politicians to the Senate to do a job. In this case, that means going through the hearing process and taking a vote. If the tables were turned for these parties, as they were in 2008 and will undoubtedly be again in the future, the same principle should hold. Otherwise, our political system will continue degenerating into one solely based on partisan bickering, resulting in a debilitating lack of progress for the country.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.
