The Student Newspaper of Mississippi State University

The Reflector

The Student Newspaper of Mississippi State University

The Reflector

The Student Newspaper of Mississippi State University

The Reflector

Congress must accept Supreme Court nominees

I became an opinion writer last spring and promised myself that I would not write about Donald Trump. Even though his comments were consistently outrageous and controversial, I refused to provide any additional discussion of him in a news outlet, even if it were only in The Reflector. Well, this sweet, blissful avoidance of Trump is no longer possible and I am forced to confront the many implications of a Trump presidency.

One component that I find especially troubling is the vacancy that remains on the Supreme Court that has been recently discussed among senators. Supreme Court Justice Antonin Scalia died on Feb. 13, 2016, leaving an open seat for almost 11 months. Although I do worry which individual will soon fill this seat, that is a story for another day— I want to instead focus primarily on the egregious act of denying a hearing for a president’s Supreme Court justice nominee. I will examine both what this looked like under President Obama and what it would mean under President-elect Trump.  

When questioned on MSNBC about how Democrats will handle Trump’s future Supreme Court nominations, Sen. Jeff Merkley of Oregon responded, “We need to do everything we possibly can to block it.”

Senate Minority Leader Chuck Schumer echoed this stance by contending that Democrats would fight “tooth and nail” to oppose any nomination that does not meet their standards and will “absolutely” do their best to hold the seat open. Although I am frankly terrified of who Trump will nominate, I find this approach to be both unsettling and dangerous.

According to Article II Section II Clause II of the U.S. Constitution, the president “shall have the power, by and with the advice and consent of the Senate” to nominate judges of the Supreme Court. However, the Constitution remains silent regarding the number of Supreme Court judges and the manner in which judges are appointed. According to the History Channel, Congress set the number of justices to nine in 1869, where it has remained ever since.

Additionally, The Constitution Center states that once a Supreme Court nomination nomination is made, the nominee must then considered by the Judiciary Committee before continuing through investigations and a hearing. These rules have been in place since 1968.

On March 16, 2016, President Obama nominated Judge Merrick Garland to fill the vacancy on the Supreme Court.

According to the We Need Nine campaign, it has been 301 days as of Jan. 11 since President Obama’s nomination has gone without a hearing, greatly surpassing the previous record for longest time between a president’s nomination and the Senate’s review of that nominee. The old record was 125 days.

The refusal to even consider the president’s nomination has been greatly out of step with the manner in which Congress has historically conducted itself. To justify this refusal, many Republicans have claimed that the president should not be able to nominate a justice during an election year, contending that this authority belongs to whomever is next elected to hold office. However, the SCOTUS blog points out that six justices have been confirmed during election years since 1912, when President Taft successfully nominated Mahlon Pitney. This proves this claim to be imprecise when viewed through a historical context.

Senate Majority Leader Mitch McConnell invoked what he referred to as the “Biden-Rule” to explain why the Senate would not consider President Obama’s nominee last year. Politifact explains that this term draws from a 1992 speech made by Joe Biden arguing that the President should not be able to make a nomination during an election cycle. There was no Supreme Court vacancy, no nomination to consider, and no vote to adopt this as a rule at the time. Rather, this was simply a speech on the Senate floor up for consideration.

Even if we were to imagine that this rule held some legitimacy in the legislature, Biden never argued for the president to be denied the authority to nominate following the election, just that a nomination should not occur close to an election and the dates of party conventions.

If we were to keep imagining the Biden-Rule’s legitimacy even still, this speech was made on June 25, 1992,  four months closer to the election than when the vacancy became available last year. Ultimately, the “Biden-Rule” is not a rule and should not be applied as such, especially when considering that a CNN poll found that 57 percent of the American public believed the authority to nominate a Justice remained with President Obama.

The importance of the Supreme Court cannot be overstated. According to the Supreme Court website, the court receives 7,000-8,000 petitions for a writ of certiorari each year and hears oral arguments for approximately 80 of these cases. The impact of Supreme Court decisions reverberates throughout the country, establishing precedent for a range of issues. Just a few of these are inter-state commerce, same-sex marriage, and limits on freedom of speech.

A Supreme Court with only eight justices hinders the court’s ability to rule efficiently, because  the justices remains at risk of a 4-4 ruling, effectively causing the same legal implication as that of a denied case. Harvard Constitutional Law professor, Laurence Tribe, warned that as an effort to avoid wasting time on cases likely to end in a deadlock, the court is likely to avoid hearing controversial cases, which are often the most crucially important.

Due to the court’s significance in upholding our democracy, we must set aside partisan political strife and honor the President’s authority as declared in Article II of the U.S. Constitution. This should have occurred months ago under President Obama and it must occur as we carry into 2017 under the leadership of Donald Trump.

As tempting as it may be to play the game of adolescents and do something mean back just because someone else did it first, this should not be how our nation’s democracy functions. Democrats will only cause further harm by continuing to set a destructive precedent of allowing partisan conflicts to interfere with granting review of Supreme Court nominations.  

Democrats must do what Republicans failed to have the decency to do. In the coming months, they must grant a hearing for the individual nominated by President-elect Trump. Now this does not mean Democrats should simply approve whoever is nominated without a thorough review; they absolutely must work to ensure that this individual will dutifully serve in the position. Ultimately, however, Democrats must move forward in demanding that no future Congress display such egregious disregard for our democracy as the Republican party did in 2016.
Editor’s note: This story contains more details than what was published in the print edition.

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Congress must accept Supreme Court nominees