Senate’s refusal to move on Garland continues to undermine rule of law

A month ago, Sen. Richard Blumenthal (D-Conn.) and Monte Frank (one of the co-authors of this piece) warned that the Senate’s refusal to consider President Obama’s nomination of Chief Judge Merrick Garland to the U.S. Supreme Court would undermine the rule of law. Despite this warning, the Senate Judiciary Committee has continued its blocking tactics and has rebuffed calls for hearings and a vote. As leaders in the legal profession, we are committed to protecting the rule of law. Thus, we cannot remain silent as the Senate refuses to consider Garland. This level of obstructionism is unprecedented in American history and undermines the rule of law, the very foundation on which this great nation was built.

{mosads}The rule of law is the restriction of the arbitrary exercise of power by subordinating such exercise to well-defined and established laws. As discussed in the earlier piece with Blumenthal, in the United States, the rule of law is grounded in our Constitution, which unambiguously lays out the process for filling vacancies to the Supreme Court. Article II, Section 2 of the Constitution states the roles the president and the Senate must play in the appointment process: “The President. … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” The Constitution is also clear that the president’s term is four years, not three or three-and-one-fourth years.

Now that Obama has fulfilled his constitutional responsibility and made a nomination promptly to fill the current Supreme Court vacancy, the Constitution requires the Senate to likewise fulfill its responsibility to consider and act promptly on the nominee. The Senate needs to move forward by holding meetings, conducting hearings and ultimately taking a vote.

While Garland is preeminently qualified, having served as chief judge of the United States Court of Appeals for the District of Columbia Circuit since 1997, whether the Senate ultimately confirms him is an entirely different question than whether the Senate should even consider him. The current arbitrary exercise of power to deny Garland a hearing and a vote is the kind of abuse the rule of law is designed to protect us from. If the well-defined and established provisions of the Constitution are permitted to be willfully ignored, then the rule of law will be undermined.

In a letter to the leadership of the Senate, 15 past-presidents of the American Bar Association emphasized their utmost respect for the rule of law and the “need for the judicial system to function independently of partisan influences. The founding fathers understood this as well, and structured the constitutional system of government to insulate the judiciary from changing political tides. The stated refusal to fill the ninth seat of the Supreme Court injects a degree of politics into the judicial branch that materially hampers the effective operation of our nation’s highest court and the lower courts over which it presides.”

The Senate should follow the example set by President Reagan and then-Senate Judiciary Committee Chair Joe Biden (D-Del.) in considering Justice Anthony Kennedy, who was confirmed in an election year. Reagan urged the nation to “join together in a bipartisan effort to fulfill our constitutional obligation of restoring the United States Supreme Court to full strength.” He asked the Senate for “prompt hearings conducted in the spirit of cooperation and bipartisanship.” Biden responded: “I’m glad the President has made his choice. We will get the process under way and move as rapidly as is prudent. We want to conduct the committee’s review with both thoroughness and dispatch.” Sen. Chuck Grassley (R-Iowa) was also on the Senate Judiciary Committee at that time. Now that he is the chair, he should follow the example set by Reagan and Biden.

The Senate’s refusal to process the nomination has already impacted the lives of everyday people throughout the United States. If lower court decisions are confirmed simply because of a tie in the Supreme Court, as has already occurred and will continue to occur until the vacancy is filled, then the court will not have created precedent and the lower courts will not be able to rely on those decisions. Open questions of law on significant issues will continue to be left unanswered. To fill this void, the Senate must move forward on a bipartisan basis with meetings and hearings, consideration of and a timely vote on the nominee.

President Reagan’s words in 1988 on the confirmation of Justice Kennedy are just as applicable today: “The Federal Judiciary is too important to be made a political football. I would hope, and the American people should expect … for the Senate to get to work and act.” We urge the Senate to put partisan politics aside for the good of the American people and to avoid undermining the rule of law.

Monte Frank is president-elect of the Connecticut Bar Association and president of the New England Bar Association. Silkenat is a former president of the American Bar Association. Emens-Butler is president of the Vermont Bar Association. The opinions expressed are their own.