An equally divided U.S. Supreme Court can be a paralyzed court. Since the death of Justice Antonin Scalia in mid-February, the Court faces two options in the case of 4-4 rulings: to accept the ruling of the lower court or to set the case aside for re-argument when a full court is available. If the latter is chosen the litigants may be in for a two-term long wait. The Majority Leader of the Senate, Republican Mitch McConnell, has vowed to maintain the vacancy until the inauguration of the next President. Undeterred, President Obama nominated Merrick Garland. Given Article Two of the United States Constitution, which requires that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court,” an impasse has taken firm root.
Senator McConnell cites two reasons for the blanket moratorium. The first is the ‘Biden Rule,’ which was an argument made by Joe Biden in a 1992 Senate speech. It advises against Senate consideration of nominations during an election year. The second is the need to give the American people a ‘voice’ in the decision. Neither excuse supports the inaction of the Senate. To start, the ‘Biden rule’ is not binding. Since 1900 eight Supreme Court nominations have been considered during an election year and six were confirmed. Given that Supreme Court Justices’ have life tenure, this number is not as insignificant as it first appears. Moreover, Americans have used their voice; Obama was elected twice and a recent poll revealed that the American people want Obama’s nominee to be considered. Interestingly enough, the same poll revealed that a majority of Americans would prefer Tom Hanks to make the Supreme Court choice to Donald Trump. In other words, it is dangerous to assume that the next President will win the popular vote, much less select a nominee acceptable across the political aisle.
Just five days before Judge Garland’s nomination, Republican Senator Hatch told Newsmax the following:
The President told me several times he’s going to name a moderate, but I don’t believe him … [Obama] could easily name Merrick Garland, who is a fine man. He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.
Thus, despite the selection of a candidate praised and admired by several Republican Senators, many insist upon standing their ground. Those that break from the party leadership have faced extreme criticism and threats to their position within the Senate.
Whilst seemingly extreme, some argue that ‘confirmation wars’ are simply politics as usual. Indeed, a Democrat-dominated Senate obstructed many of George W. Bush’s judicial nominations, a Republican Senate refused to confirm dozens of Bill Clinton’s nominations, and so on and so forth. Others argue that in recent years the process has deteriorated more severely. After all, a conciliatory approach has characterized Obama’s nomination procedure. He reinstated American Bar Association ordering neurontin scrutiny before making nominations to access valuable peer reviews, emphasized bipartisanship by consulting both Democratic and Republican Judiciary committee members and encouraged politicians and legislators from the state with the vacancy to create commissions that suggested candidates.
And yet, the last two years of his presidency has seen a confirmation slowdown that has no precedent in the two-term presidencies of Reagan, Clinton and Bush. Consequently, writers warn that obstructionism has gone too far for too long. Practically speaking, litigants must compete for fewer judicial resources, judges assume more voluminous dockets, cases proceed slowly and courts struggle to perform their judicial duties. More importantly, a key institution of government is weakened; partisan rhetoric surrounding nominations undermines the reputation of courts. The consequences of this, Obama suggested at a lecture at the University of Chicago, are that “faith in our justice system will inevitably suffer. Our democracy will suffer as well.”
So what will happen next? The practice of using judicial vacancies as hostage-taking opportunities will almost certainly continue. However, they may become less dramatic following the Judge Garland controversy. To explain why, let’s take a step back and consider what motivates ‘confirmation wars.’
Political maneuvering is certainly the most obvious explanation. Rather than risk a centrist aligning with the four-member liberal wing and swinging the Court, Republican Senators hope that their party will win the White House and a conservative will be selected for the vacancy. However, scholars also suggest that blocking nominations is part of a broader and more nefarious strategy. According to Thomas Mann and Norman Ornstein, the Republican Party deliberately undermines Americans’ belief in government institutions as an electoral strategy. As the Senate and Congress fail to function efficiently and properly, the reputations of the institutions falter and the Republican Party, the alternative to the established government, is rewarded with electoral dividends. This strategy, as described by Mike Lofgren, a former Republican Congressional aide, is:
A deeply cynical tactic, to be sure, but a psychologically insightful one that plays on the weaknesses both of the voting public and the news media. There are tens of millions of low-information voters who hardly know which party controls which branch of government, let alone which party is pursuing a particular legislative tactic.
And yet, a political strategy is only valuable insofar as it is successful. Obama’s campaign for Judge Garland, the impressive and consistent press coverage of the ongoing controversy and the use of the hashtag #DoYourJob over numerous social media sites like Facebook, Instagram and Twitter ensures that the public understands the cause of the Supreme Court gridlock. Consequently, it is unlikely that this political war of attrition inspires much faith in the ability of the Republican Party to govern. As it drags on perhaps a few Republican Senators will buckle and rethink the rigid and aggressive application of their strategy. If not, they could very well pay the price when they are counting ballots come November.