People For the American Way Foundation

GOP vs. the Integrity of the American Judicial System

News and Analysis

The nation is mourning the loss of Justice Antonin Scalia, who served on the nation’s highest court for nearly 30 years.  Since he became a justice in 1986, Americans have – appropriately and vigorously – debated the merits of his approach to the law.  The Constitution could not be any clearer that such debate is protected as vital to our democracy.

The Constitution also could not be clearer about what happens next:  The president nominates someone to fill the vacancy, and the Senate votes on whether to confirm the nominee.  President Obama has, responsibly, said he plans to fulfill his constitutional duty.  Yet bizarrely, many Senate Republicans are standing behind their Majority Leader’s insistence that the vacancy should be filled only by the next president, the Constitution notwithstanding, since this is a presidential election year and Obama’s final year in office.

He and other GOP senators have said that the American people deserve to have their voices heard and weigh in on who should fill the vacancy on the Supreme Court.  That clever bit of misdirection suggests that this hasn’t already happened.  However, the public did weigh in and make their voices heard in 2012, when the American people overwhelmingly re-elected President Obama to remain president for the next four years (and not just three).  The losing candidate’s political party does not have the right to simply nullify the American people’s choice, or to unilaterally amend the United States Constitution to limit the president’s responsibilities and powers during their final year.

We have a president, and he has nearly a year left in office.

Interestingly, the principle Senate Republicans would impose on the president are ones they are not imposing on themselves.  For instance, Florida Sen. (and presidential candidate) Marco Rubio is  serving out his last year in office, just as President Obama is.  Will he abstain from participating in votes because doing so would deny Floridians a chance to weigh in on the matter?  The same could be asked of retiring Sens. Dan Coates (Indiana) and David Vitter (Louisiana)?  Are conservatives seeking to delegitimize their roles in Senate consideration of judicial nominees or any other matter because they are retiring in eleven months?  Of course not.  While the Senate awaits President Obama’s Supreme Court nomination, it should be working overtime to consider and vote on the three-dozen circuit and district court nominees pending before the Judiciary Committee and on the Senate floor.

Just as the Constitution and principle are not on the GOP’s side, neither are the facts.  For instance, Ohio Sen. Rob Portman has said that “it's been nearly 80 years since any president was permitted to immediately fill a vacancy that arose in a presidential election year.”  His constituents could be forgiven for inferring that the situation we now face is common, and that nomination and confirmation of Scalia’s replacement this year would go against historical norms.

However, the current situation is anything but common.  The fortunate reality is that it is extremely rare for a Supreme Court justice to die in office.  In fact, since 1950, this is only the fourth time a sitting justice has passed away, and this is the only time it has happened in a presidential election year:

1.      Chief Justice Fred Vinson – died in 1953

2.      Justice Robert Jackson – died in 1954

3.      Chief Justice William Rehnquist – died in 2005

4.      Justice Antonin Scalia – died in 2016

Thankfully, this is an extremely unusual situation.  Republicans cannot cite precedent for an incumbent president under these circumstances to abstain from carrying out his constitutional duties and force Americans to wait a year or more for the next president to fill a sudden, unexpected vacancy on the nation’s highest court, simply because it was a presidential election year when a justice died.

Justices who retire often time their announcements in time for a replacement to be nominated and confirmed by the beginning of the next Supreme Court term.  That is why most of the current justices were able to take their seats in time for the traditional First Monday in October, ensuring a full complement of nine justices.  As an alternative way to protect the institution, Sandra Day O’Connor agreed to remain on the Court until her replacement could be confirmed.  So even though Justice Alito was confirmed in January 2006, the middle of the term, the nation’s highest court was not forced to operate short-staffed.  In ways such as these, retiring justices have sought to protect the integrity of the Court by ensuring it be able to operate at full capacity.

Unfortunately, despite Justice Scalia’s devotion to the Court he served on for three decades, he did not have the opportunity to protect it from having to operate short-staffed.  And yet many Republicans are vowing to keep the Court hobbled for as long as possible.

Waiting until 2017 to nominate and confirm the next justice would force our nation’s highest court to operate understaffed not just for the remainder of the current term (which ends in June), but for at least half of the 2016-2017 term, as well. The Court’s term begins in October, and it generally hears oral arguments until April.  Even if the next president’s pick were confirmed quickly (say, in February 2017), the new justice would have already missed oral arguments in the majority of cases that term and would not be able to vote on them.  Having only eight justices would very likely lead to numerous cases being tied 4-4, and such cases have no precedential effect.

Intentionally crippling the Supreme Court for two consecutive terms would be the height of irresponsibility.

Public rejection of the GOP’s explicit obstructionism has made some Republican try to walk back their inflexible stance, but actions will speak louder than words.  The president’s nominee should be given a timely and fair committee hearing, be fully vetted, and receive a timely confirmation vote by the full Senate based on the nominee’s qualifications.

This shouldn’t be about politics.  It should be about the Constitution, our democracy, and the integrity of the United States justice system.


Antonin Scalia, Dan Coates, David Vitter, judicial nominations, Marco Rubio, Mitch McConnell, Protecting Lower Courts, Rob Portman, Supreme Court