Obama’s Supreme Court nominee Merrick Garland photo courtesy of whitehouse.gov
The death of Supreme Court Justice Antonin Scalia has revealed the enormous partisan tension lurking in our political system, and our politicized Supreme Court. Not hours after Scalia’s death, a fierce battle erupted between Democrats and Republicans over a seemingly simple question; should President Obama, who still has nearly a year left in office, nominate a replacement. If one were to look to the Constitution, the answer would be a clear yes. But if American politics have taught us anything, it’s that even our country’s most important legal document is up for extensive interpretation if necessary. And so, citing “precedent,” Republicans like Ted Cruz and Senate Majority Leader Mitch McConnell have been arguing that a president so far into his term should give up one of his constitutional rights. They cite an ever changing and supposedly well-intentioned list of reasons, from the suggestion that a delay would allow the American people to choose for themselves, to the highly dubious statistics about justices not being appointed by a president in the final years of his term. It is a ridiculous idea that this election would give the American people more choice over the justice, after they already chose a president with the full knowledge that he would be nominating Supreme Court Justices. They claim that the president would be doing the country a service by giving up his duty, which is unsurprising given the hate and vitriol they’ve spewed at him for so many years.
Regardless of the president’s decision, it appears that congress will adopt one of their favorite tactics when faced with a disagreeable future: they simply refuse to do their job. As Donald Trump so eloquently put it, the Republican tactic should be to “Delay, delay, delay.” And with this familiar tune of obstruction of government playing from the right side of the aisle, many Democrats are seizing this opportunity as a chance to demonstrate their moral high standing and love of the Constitution. Senator Elizabeth Warren posted on her Facebook page. “Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself.” And, while comments like this are technically correct, they leave out a significant question: what would Democrats do if the places were reversed? What if a Republican president at the end of his term sought to appoint a Republican leaning justice to replace a Democratic one?
While of course the Democrats would say that they would simply do their jobs like the good little politicians they are, I think the answer is far more complicated. A Supreme Court justice has an immense amount of power, unfortunately, to support the side with which they have an affinity. The decisions they make for their side will have lasting impact. It’s certainly easy to foment a most correct legal course of action when it supports your best interests — an entirely different one to bow down and accept the loss without a fight. And as a 1992 video of Joseph Biden, then head of the Senate Judiciary Committee, shows, there is certainly precedent for Democrats to fight against Republican Supreme Court nominations in the final years of a presidency. Tipping the partisan balance in the Supreme Court would be a huge victory for the side that achieves it. However, what all these arguments and skirmishes fail to address is the root problem being constantly ignored in the Supreme Court: the fact that there are partisan factions at all.
The Supreme Court is intended to be a check to the politics and partisan battling of both Congress and the president. The Court is last line of defense to protect our constitution, a measured voice of reason to help provide the framework for our laws and our government at the highest level. But that is not the service that the Supreme Court provides, or has provided for many years. It is, instead, yet another partisan battleground — a set of scales that Democrats and Republicans struggle to tip in their favor. Of course, there can be multiple interpretations of the constitution — some liberal, some conservative. But the idea that any justice is a “sure vote,” an undisputed representative of their political party, is mired in petty politics. Justices should interpret the constitution to the best of their legal ability.
But this has not been the strategy adopted by many of today’s justices — I ask you, how can anyone effectively form a detailed legal opinion on 10 years of cases without asking a single question from the bench? Clarence Thomas would tell you that he could, if he could actually muster the ability to say anything. The fact that Scalia’s death has miraculously granted him the gift of speech does little to undo his years of mindlessly following conservative opinion.following conservative opinion. It is immoral and frankly shameful that presidents continue to appoint justices hoping they will appease the party that gave them that job.
That’s why it is so important that President Obama has followed the spirit of our country’s laws and chosen to nominate a centrist in Appeals Judge Merrick Garland. And it’s also why the Senate, on both sides, has a responsibility to for once put aside petty partisan politics and listen to reason. Obama has opened a great opportunity for our country: compromise, and begin to fix the Supreme Court. This is an opportunity that Senate Republicans cannot choose to simply ignore out of partisan hatred of the sitting president. It’s time for them to wake up and do their jobs — and actually do something that will benefit our country.