After the passing of Justice Antonin Scalia, President Obama hoped to follow past precedent and nominate a new justice to the Supreme Court. His choice was to the court was Merrick Garland, the the Chief Judge of the United States Appeal Court DC circuit. Everyone assumed that a confirmation hearing would take place. However, what would occur for the next year was the most surprising filibuster in recent American judicial history.
Legally, after POTUS nominates a person to the Supreme Court, a hearing can take place in the Senate to confirm the citizen to the court. The crucial word to this is "can," because technically, SCOTUS confirmation hearings do not actually have to happen. It is up to the Senate's discretion about whether there should be a hearing to determine whether someone is fit to be on the court. It is clearly mentioned in Article II, Section 2 of the Constitution, where "[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States..."
Because the Constitution only mentions the role directly of the President, there is one true constitutional crux: what determines "Advice and Consent of the Senate"? In the past, the Senate has just had their Judiciary Committee conduct hearings and then propose their findings to the Senate as a whole, where a nomination for a vote will take place. But that does not necessarily mean that this vote can actually determine whether this constitutes "Advice and Consent."
This is not the only time that the Senate has chosen to filibuster a presidential nomination. In 1965, after President Lyndon B. Johnson nominated Abe Fortas to chief justice after he was appointed as an associate justice. He was filibustered after there were not enough votes to pass a "cloture" vote. He later resigned shortly after the Nixon inauguration. This circumstance unlike what took place with Johnson is that the Senate never chose to hold a vote. The Senate in 2016 made the conscious choice to not allow a more liberal justice, but more importantly, a justice appointed by Obama, to join on the court.
So with the appointment and confirmation of Associate Justice Neil Gorsuch, many Americans were furious and upset at the fact the nomination of Judge Garland went nowhere. That being said, because the Constitution truly allows for the separation of powers, the Senate does not ever need to hear any SCOTUS nomination to assert their power over the executive. The uptick in partisan politics more than likely will lead to future refusals by the Senate to hear SCOTUS nominations.
Sources:
https://www.theatlantic.com/politics/archive/2016/05/senate-obama-merrick-garland-supreme-court-nominee/482733/
https://www.judiciary.senate.gov/nominations/supreme-court
https://www.history.com/news/the-last-time-a-scotus-nominee-was-filibustered-yes-its-happened-before
This was a very clearly explained post. I think the part about what "Advice and Consent" actually means is an interesting debate. Something in recent news that relates to this topic is the Republican supported end to filibustering Supreme Court nominations. After filibustering Garland for so long just a year before in 2016, in 2017 the Republicans chose to eliminate the filibuster as an option so they could vote Justice Gorsuch into the Court themselves.
ReplyDeletehttps://www.wsj.com/articles/senate-is-expected-to-vote-to-end-supreme-court-filibuster-thursday-1491471004
This was a really informative post about how the Senate effectively blocked the confirmation of Judge Garland and how these types of confirmation hearing refusals are bound to continue with the recent uptick in partisan politics. Another recent example of partisan politics is the whole process of confirming presidential cabinet appointments. In 2011, Senate Majority Leader Harry Reid changed the confirmation rules by triggering the "nuclear option," and the vote to trigger this option was along strict party lines. Now that the majority has flipped in favor of the Republicans, a lot of Democrats are regretting this because Trump's cabinet members have been confirmed with majorities of less than 60 votes (a nuclear majority). With this nuclear majority, bipartisanship is often no longer required to make decisions in the legislative branch. As you said, this will probably lead to more occurrences like what happened with Judge Garland.
ReplyDeletehttps://www.theatlantic.com/politics/archive/2017/01/democrats-trump-cabinet-senate/513782/
I found this post really interesting and it goes to show that the Constitution is very much up to interpretation. Just as the Senate chose to not go through with Advice and Consent, throughout history, the various branches have chosen to interpret their own powers. For example, in Marbury v Madison, Chief Justice Marshall created the precedent for judicial review despite the power not being outlined in the Constitution. While the Constitution exists the guide our nation, it is very clear that a good chunk of it is based on having faith that those in government will fulfill their responsibility and not step beyond the limits of their power. In the case of Merrick Garland, what we see is the Senate finding a loophole in the Constitution and not fully acting off of what has been deemed to be a norm.
ReplyDeleteSOURCE : http://www.latimes.com/opinion/editorials/la-ed-supreme-court-nomination-20170131-story.html