Advocates around the country are making a series of special deliveries to several United States senators today in order to symbolize one of the greatest failures in American government in recent decades. At appointed times, the advocates will deliver miniature chairs to a list of senators – let’s hope North Carolina’s Thom Tillis and Richard Burr are on the list – who have participated in the ongoing and inexcusable blockade of U.S. Supreme Court nominee Merrick Garland.
By delivering the empty chairs, the advocates are hoping to focus the public’s attention on the fact that the United States Supreme Court (which commenced its 2016-17 term yesterday) has now reached a moment that is at once historic and absurd.
As of today, it’s been 234 days since Justice Antonin Scalia died and 202 days since President Obama nominated Garland (the widely respected chief judge of the nation’s highest circuit court of appeals) to replace him. This Saturday, the current vacancy will become the second longest in the court’s modern (post-19th Century) history. If Garland or some other nominee is not confirmed before March 11 of next year – less than two months into the next president’s term – the vacancy will become the lengthiest since the Civil War.
What’s more, unlike the case with the two lengthy vacancies that took place during the presidency of Richard Nixon, the current vacancy is the only one in modern times not to feature any kind of Senate hearing or multiple nominees.
It is, in other words, an unprecedented and disastrous situation. This is from an editorial in yesterday’s New York Times entitled “A Crippled Supreme Court’s New Term” :
“This is American politics in 2016: the normalization of the deeply abnormal, the collapse of customs of behavior and respect, and the creation of an environment so toxic and polarized that the nation’s leaders struggle to carry out the most basic tasks of government.
In this chaotic climate, it can be easy to forget that the Supreme Court, which begins a new term on Monday, remains without a ninth justice nearly seven months after President Obama nominated Merrick Garland to fill the vacancy created by the death of Justice Antonin Scalia in February. That seat is likely to stay empty until well into 2017, and depending on which party wins the White House and controls the Senate, possibly long beyond that.”
Simply put, on one of the most basic functions of governance, the United States Senate has utterly abdicated its responsibility and refused to perform its constitutional duty. It’s a hell of a mess.
Gridlock begets gridlock
The effects of the political gridlock are made much worse by the fact that the court itself is currently divided, four-to-four, on a host of important constitutional issues. Not only are the American people suffering simply by virtue of having an aging and understaffed court that lacks 11% of its brainpower, the current divide is also prohibiting the resolution of a host of critically important constitutional questions that divide the country. As NC Policy Watch Courts, Law and Democracy reporter Melissa Boughton reported yesterday in “First Monday in October: Cases to watch in the new U.S. Supreme Court term” :
“The U.S. Supreme Court’s 2016-17 term will commence today, and experts agree that with the court one justice down, some hot-button issues may not be so hot this year. The court’s docket is by no means set, and while there are issues of race, religion and immigration to be reviewed, the 40 cases justices have agreed to hear are, for the most part, very technical.
The court appears to be avoiding extremely partisan cases because of its hobbled state since Justice Antonin Scalia’s death and its current 4-4 ideological split among justices, which could lead to deadlocks.”
Put another way, the highest and most important court in the land is simply punting on a raft of issues because, well, it just can’t decide what the heck to do. This is no way to run a government. Again, here’s the New York Times:
“Meanwhile, some of the nation’s most pressing legal issues are awaiting substantive rulings by the court. Most urgent among these are lawsuits against the efforts of Republican legislatures to suppress voting by minorities, young people and others who tend to vote Democratic.
For example, in July a federal appeals court panel struck down a 2013 North Carolina law that one election-law scholar called “possibly the largest rollback of voting rights” since 1965. That court found the law had been enacted intentionally to reduce black voter turnout.
North Carolina appealed that ruling to the Supreme Court, which split 4-to-4 without issuing any explanation, meaning that the lower court’s decision was upheld. While that was the right result, a full court could have set a legal standard on voter suppression efforts that would have applied nationwide.”
And yesterday, we saw the negative consequences of the divide play out in especially destructive fashion when the divided court refused to take on United States v. Texas – a case out of the Fifth Circuit Court of Appeals dealing with two of the Obama administration’s “Deferred Action” programs that allow law abiding immigrants to stay in the country. This is from a statement by advocates at the National Immigration Law Center :
“The U.S. Supreme Court today declined to rehear arguments in United States v. Texas, denying millions of immigrant families who would benefit from the Obama administration’s 2014 immigration executive actions their fair day before a full court….
Once again, the Judiciary has allowed the politics of obstruction to prevail over justice. Legal experts across the board agree that a rehearing was not only appropriate, but necessary, in U.S. v. Texas. And yet, the Justices failed to do what’s best for the country by allowing this case to be reconsidered once the Supreme Court is fully staffed.”
High stakes poker
According to the authors of the Garland blockade – including Senators Tillis and Burr – the current situation is really no big deal. Their unconvincing public position is that it would be wrong to “rush” a nominee through during an election year and that, in effect; the presidential contest between Hillary Clinton and Donald Trump is an opportunity for voters to “have their say” on the matter.
In addition to all of its many other flaws, such a position, of course, begs the question of whether either man would be willing to accept a Clinton nominee should she prevail in the “referendum” next month. We’ll see.
Whatever the real motivations of senators like Tillis and Burr – concern for the integrity of the electoral process or a last ditch effort to stymie a new wave of progressive societal change that might well sweep the country – one thing is certain about the current fight over the court: the stakes are extremely high. As the national advocacy group known as the Alliance for Justice put it recently on its website SCOTUS Tipping Point :
“This is a make or break moment for our rights and freedoms. Right now we’re at a crossroads. The death of Antonin Scalia has left a vacancy on the Court, and that’s just the beginning. There are three more justices who will be in their 80s during the next administration. The math here is simple: whomever those four new justices are will determine what the Constitution means for the rest of your life.”
Given this truth and the virtual certainty that today’s chair deliveries are unlikely to move the senators in question to action on the Garland nomination prior to the election, it’s increasingly clear that the upcoming national election will have a monumental impact on the court and the nation’s future.