On March 16, President Barack Obama nominated Judge Merrick Garland to fill the vacant seat on the Supreme Court caused by the death of Justice Antonin Scalia. Almost immediately, the Republican leadership of the Senate declared that no vote would be held on Garland, instead insisting that the next president should fill the seat.
As of the date of the nomination, President Obama had 310 days, nearly a full year, left in office. As of today, Garland’s nomination has been pending before the Senate for a whopping 217 days, a new record. Still, no vote has been taken and the prospects for one is slight.
Prior to Garland’s nomination, the longest period between the nomination of a justice and his or her confirmation was 125 days, when President Woodrow Wilson nominated Justice Louis Brandeis to the court. As the New York Times reported in February, the average length of time, historically, from nomination to confirmation (or withdrawal) of a Supreme Court justice has been 25 days. The time between Obama’s nominations of Sonya Sotomayor and Elena Kagan to serve on the high court and their confirmations took 66 and 86 days, respectively.
There are two Republicans standing in the proverbial doorway of the Supreme Court keeping an otherwise excellently qualified jurist from serving on the Supreme Court: Senate Majority Leader Mitch McConnell of Kentucky, and chairman of the Senate Judiciary Committee Chuck Grassley of Iowa. Both leaders were steadfast in their opposition to any nominee Obama named to the court, even if the nominee were Republican.
And the resistance might continue should Hillary Clinton become the next president. Longtime GOP senator John McCain recently vowed to block any and all of her Supreme Court nominees.
“I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” he said.
McCain later revised his statement, instead saying that he will examine the record of a nominee and vote based on the individual’s qualifications.
Grassley, by contrast, has said the GOP “can’t just simply stonewall” nominees to the Supreme Court even they come from a President Clinton. (Grassley is assuming, of course, that he will retain his seat as chairman and the GOP can hold on to control of the Senate.)
All of this means the Supreme Court has continued to operate with eight justices for the longest period in its history. While I was hopeful that good governance would win out over political obstinance it seems I may have been too altruistic. No matter who the wins the presidential election on next month, one of the first orders of business for the new Senate must be a swift and full confirmation hearing and vote on the Supreme Court nominee, be it Garland or someone else.
If the Senate does not take up the nomination of the Supreme Court justice until after it reconvenes in January, the seat will have been vacant for almost a year. At some point, this has to stop.
The country, and the legal community, is suffering.