The Republican obstructionism over Obama nominating a replacement for Justice Scalia should be no surprise. It follows logically from their treatment of judicial appointments throughout the Obama Administration, which has led to an unprecedented judicial vacancy crisis.
Once the Republicans recaptured a Senate majority in 2014, the party’s leadership allowed the fewest lower court appointments in one year since Dwight Eisenhower’s presidency, all the while incessantly trumpeting how the party had returned the Senate to “regular order.” Earlier in Obama’s tenure, their obstruction caused 90 vacancies to remain unfilled for a whopping half decade.
This obstructionism seems motivated by ideology and a concern that the president will fill the bench with ‘liberal activists’ – even though the vast majority of Obama appointees have been well qualified, mainstream judges.
The effect of the judicial vacancy crisis has been hugely detrimental. It has left the lower courts with 75 vacancies, which means that the remaining judges are overworked, while litigants must wait interminably for their cases to be resolved, thus delaying and sometimes denying justice.
This politicization of the appointments process has also meant that nominees place their careers and lives on hold awaiting protracted confirmation, while many exceptional candidates are dissuaded from even considering judicial service.
While the mounting number of unfilled seats in the lower courts has been bad, a prolonged vacancy in the supreme court would be much worse.
The supreme court, perhaps more than any other tribunal, needs its full complement of members to operate efficiently. The court’s workload is huge. There are 8,000 annual appeals from lower courts for a hearing, of which around 100 are selected for full treatment, which includes a thorough briefing, oral argument and a written decision explaining the court’s reasoning.
If the court is down by one member, it can significantly reduce the number of cases the court is able to process. The effects of this would be delaying justice in the appeals that the court grants, accepting fewer cases for review and imposing more burdens on the remaining eight Justices.
But increased workload isn’t the only problem a supreme court vacancy creates. When the court is closely divided on many issues, as it currently is, numerous 4-4 ties can result. That leaves the lower court opinion intact and can mean questions, especially involving matters of justice, remain unresolved for extended times. It may also waste judicial resources necessitated by later reargument.
Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chair Charles Grassley appear unmoved by these inevitable risks. They continue to assert that Justices have customarily not received nomination or confirmation in a presidential election year since 1935. However, that assertion cannot withstand historical scrutiny.
The most recent, pertinent example is Justice Anthony Kennedy whom President Ronald Reagan confirmed in 1988 by a 97-0 vote when Democrats held a Senate minority. In 1956, Eisenhower correspondingly recess appointed Justice William Brennan whom the Senate later confirmed.
Delaying until a new president nominates and confirms a successor could mean that this Justice may not actually join the court until October 2017, thus allowing it to operate for a term and a half without a full contingent.
These reasons, but especially the Constitution’s own words, which Justice Scalia so revered, require that the president expeditiously nominate an outstanding candidate and the Senate promptly supply advice and consent on that nominee. Considerations of policy and practice also counsel in favor of seating a new Justice as swiftly as possible.
Leaving a seat in the nation’s highest court is a price too high to pay for petty political point-scoring. Citizens deserve a fully functioning court which delivers justice for the American people.