Nominations and the U.S. Supreme Court

The unexpected death of Justice Antonin Scalia on February 13, 2016 created an opening on the United States Supreme Court. It didn’t take long for politicians to weigh in on what should be done to fill the empty seat. Generally speaking, Republicans felt that President Obama should leave the selection of the next justice to his successor in office, even though that would mean leaving the position open. Democrats, on the other hand, insisted that the position should not go unfilled for such a lengthy time. This situation represents an unclear dilemma for which the U. S. Constitution, unfortunately, doesn’t provide clear guidance.

Article II, Section 2 of the Constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme [sic] Court. . .”[1] The president proposes the name of a person he wishes to become the next justice of the Supreme Court. The nominee then meets with members of the Senate and submits to hearings before the Senate Judiciary Committee. The Judiciary Committee votes to recommend, reject, or pass without recommendation the nominee onto the full Senate.[2] Traditionally, even if the Committee votes against the nominee, the nomination is still passed on to the Senate. Hearings are held before the full Senate prior to a vote on the nomination. A simple majority of 51 is all that is needed to confirm the nominee. Since 1789, only 12 nominees have been formally rejected by the Senate,[3] although the process for some nominees has been quite contentious. President Reagan’s nominee, Robert Bork, and President George H. W. Bush’s nominee, Clarence Thomas, each underwent grueling hearings. Ultimately Bork was rejected by the Senate[4], while Thomas was confirmed.[5]

In March, President Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to fill the open seat. The chair of the Senate Judiciary Committee, Senator Chuck Grassley of Iowa, controls whether Judge Garland’s name goes to the Committee for consideration. Thus far, he has declined to allow it to do so and has even met with Judge Garland in person to advise him that that situation will not change.[6] Grassley, along with many other Republican senators, believes that President Obama should not be permitted to fill the seat, but that the person who becomes President on January 20, 2017 should do so.

The Constitution offers little guidance on this issue. While it states that the Senate shall provide “Advice and Consent,” it is silent on what happens if the president nominates a candidate but the Senate refuses to act on the nomination. At least one scholar has stated that the president can fill the vacancy if the Senate refuses to act [7] while another has argued just as forcefully that he cannot do so. [8] Meanwhile, Judge Garland is left in limbo and the Court is left with an even number of justices. Cases will continue to be argued before the eight-member Supreme Court. It now requires a minimum of a 5-3 vote in order to change the rulings of any lower court in those cases. A case which receives a 4-4 vote during this time means that the lower court ruling will stand. There would be no precedential authority created by the 4-4 ruling.[9]

If the Republicans are correct, and the Senate has no obligation to take up any nomination by the president, then, taken to the extreme, we could one day end up with no justices on the Supreme Court. Surely that couldn’t have been the intent of the writers of the Constitution. On the other hand, there is no mechanism in the Constitution to force the Senate to take up any nomination. Ironically, there is one body that could ultimately break such a stalemate and force the Senate to do something – the United States Supreme Court.