Disagreement threatens successful Supreme Court nomination
BY KATHERINE BAUER
Not even 24 hours after the death of Supreme Court Justice Antonin Scalia on February 13, a political battle began over nominations and hearings for a new Supreme Court Justice.
“Everybody recognized immediately that his death would provoke a political fight,” said Rachel Paine Caufield, a Drake political science professor. “Within hours of the announcement that Scalia had passed away, conservative Republicans in Congress stepped forward and said, ‘We’re not going to confirm anybody prior to the presidential elections.’”
In the days following Scalia’s death, Obama made it clear that he would fulfill his constitutional responsibility in making a nomination and hoped Republicans would hold hearings and give a vote to any nominee.
Almost a month later, on March 17, President Barrack Obama nominated Merrick Garland to the Supreme Court.
“When Merrick Garland was appointed, I think it took a lot of people by surprise,” Caufield said. “He’s moderate. He’s older. He is obviously qualified. It would be hard to argue that he’s not somebody who has the legal credentials for the position.”
Even though Republicans have praised Garland and his work in the past, they refuse to hold hearings in the Senate Judiciary Committee and on the floor to consider his nomination.
“It paints Republican senators into a corner because in the past they’ve said very nice things about Merrick Garland, and now they’re in a position where they have to oppose him,” Caufield said.
Republicans find precedent for their actions by pointing to a “tradition” of almost 80 years in which no Supreme Court Justice has been nominated and confirmed in an election year. They believe this to be a long-standing practice.
“It’s a very carefully crafted statement,” Caufield said.
Supreme Court nominations in the last year of a president’s term are very rare. However, Ronald Reagan appointed Justice Anthony Kennedy late in 1987, and the Senate confirmed him early in 1988. George H.W. Bush won the election later that year.
“There is no precedent, absolutely none, for a president not naming a nominee until after an election,” Caufield said. “It just doesn’t exist. (It’s) more a lack of opportunity.”
First-year actuarial science major and College Republicans member Ryan Skotzke said that the presidential election this year should make no difference and is frustrated with Republicans.
“I don’t think the timing needs to matter,” Skotzke said. “While I am a Republican, I am a little bit frustrated that the Republicans are being so stubborn on this because there are laws that they’re supposed to follow, and they’re not following them by just refusing to hold hearings until a new president is chosen, which I think is probably going to be Hillary Clinton anyway. So I don’t see what they hope to gain.”
The rationale behind this “tradition” is the belief that the next commander-in-chief will represent the people in choosing the 113th Supreme Court Justice. Republicans sent the message to voters that an Obama nominee will overshadow what they want.
Other skeptics of this rationale think Republicans are simply hoping the Republican presidential nominee will be sitting in the Oval Office come next year.
“I think they want a Republican to nominate the Justice,” first-year law, politics and society and politics major Josh Hughes said. “I think that’s fair. But saying that the people need to have a voice is ridiculous because that’s not how our judicial system works. Our judicial system… is set up so that as few people as possible get to have their opinions heard because it’s not really the opinions of the people that matter in what is constitutional or not. What’s right is not always what’s popular. I think (Republicans) are not genuine in wanting the people’s voices to be heard.”
Obama and fellow Democrats feel it is the current president’s constitutional right and duty to make a nomination and that the Senate has a responsibility to hold hearings and cast votes.
“Polls seem to indicate that Obama is doing pretty well with that message,” Caufield said. “So the American people in polls seem to indicate that they would like the Senate to take action on Merrick Garland’s appointment.”
Skotzke said that he thinks the president and the Senate have a constitutional responsibility to see the nomination process through.
“I am a firm believer in the Constitution,” Skotzke said. “On the other hand, I find it highly likely that any President Obama nominee is going to not follow the Constitution when he’s on the Supreme Court.”
Democrats anticipate that the Supreme Court seat will remain empty during the coming year and that it would be detrimental to the Court. However, the Court can, in fact, function with eight rather than nine judges.
Caufield said that the Court may take fewer cases if the justices feel they cannot make definitive judgments, but ties can occur at any time if a judge abstains from voting.
“This is not a constitutional crisis,” Caufield said. “This is simply a political showdown.”
Democratic senators keep pushing a hearing to be held on Garland’s nomination. They have threatened to stop everything on the Senate floor until the Republicans agree to do this.
“They can stop the Senate from doing other things. But they have a hard time procedurally with any sort of path forward to force consideration of Merrick Garland,” Caufield said.
Iowa senator Chuck Grassley has acted as the gatekeeper for the Republicans. He sits as the Senate Judiciary Committee Chairman and will control whether or not a hearing will occur.
Grassley was one of the senators to say in the hours after Scalia’s death that there would not be a hearing on any nomination. Republican leadership has pressured him not to move on this decision.
“It’s been his whole life’s work to build up to be chairman of that committee,” Hughes said. “I guess I don’t really understand why he’s not refusing to do his job for this life’s work that he’s done. He’s playing partisan politics with democracy, our Constitution here. It doesn’t seem like it’s the Chuck Grassley we thought we knew who would put aside petty politics and do the job.”
Interest groups are targeting Grassley on either side. Iowans, as Grassley’s constituents, are also being targeted, resulting in the ads that have popped up on TV urging Iowans to call Grassley to sway him for or against a hearing.
Caufield said that the one thing that could possibly get Grassley to change his mind and hold hearings is voters. He is up for re-election this year and giving in to constituents’ demands for a hearing may be the changing factor.
However, Grassley would have to truly feel that voters would not vote for him and would vote for his opponent over this one issue. Voters, Caufield said, would have to follow through.
“I think Republicans are jumping to an irrational conclusion on how to handle it,” Skotzke said. “So I think they’re acting a bit irrationally. I don’t think there’s a whole lot to convince Senator Grassley to change his mind on this. I’d like it if he did.”
If there are no hearings on Obama’s nominee, a nomination by the next president would not come until January 2017 with a confirmation as early as February. With party nominees, presidential elections and congressional elections all hanging in the balance, “it’s a gamble on the part of Senate Republicans,” Caufield said.
Should Democrats win the presidency and a Senate majority, the Republicans could have a much more liberal nominee on their hands.
“I think that Judge Garland should get a hearing and a vote,” Hughes said. “I think if Senate Republicans really don’t want this judge so bad to be on the Supreme Court, they need to buck up and hold a hearing and then vote no. They have the votes to vote no. But I think this is a cowardly political game.”
Some Republican Senators have sat down with Garland to talk about his nomination. This is most likely done to appeal to their constituents during an election year, Caufield explained.
“If the leadership is not willing to move forward on the nomination, then it’s unlikely that the Senators will make much of a difference.”