Senate’s refusal to consider Garland undermines rule of law

This great nation has one foundation: the rule of law. Emanating from our Constitution, which establishes the three essential, inextricable branches of government, the American rule of law requires that the arbitrary exercise of power remain subordinate to well-defined legal principles. In the aftermath of President Obama’s nomination of D.C. Circuit Chief Judge Merrick Garland to the Supreme Court, Senate Republicans have continued to maintain that they will refuse to consider the nomination. In addition to demonstrating obstructionism unprecedented in American history — never, in the 100 years since the Judiciary Committee began holding hearings, has a Senate majority simply denied a nominee hearings and a vote — these tactics threaten to undermine the rule of law itself.

{mosads}Article II, Section 2 of the Constitution establishes 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.” In Federalist Paper No. 66, Alexander Hamilton indicated that the Founding Fathers saw the Senate’s role as determining whether the president’s nominee is qualified for the court, not usurping or halting the nominating process itself: “There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose, they can only ratify or reject the choice of the President.”

Senate Republicans, however, have not defeated the president’s choice. Indeed, they have not disputed that Garland is qualified for this position. Instead, they have elected simply to bypass the process by refusing to start it — to hold the nomination in abeyance for purely political reasons. Senate Republicans are trampling on their constitutional responsibility, and on the oath they swore to carry it out.

For our government to truly be one of laws and not of men, actors within it must put principle above partisanship and power grabs. If Senate Republicans continue to insist that they will not consider Garland’s nomination, there is no one who can force them to do so. But in maintaining that posture, they abuse their power. They flout the people’s choice to elect Obama to a four-year term. By unilaterally declaring that after three years he can no longer exercise his constitutional responsibility, they shirk their own — invoking an ad hoc principle that they draw not from the Constitution, but from their own desire for electoral gain.

Such willful flouting of the proper function of government threatens great harm to the rule of law. Indeed, it is the very type of arbitrary action the rule of law is designed to protect against. As American Bar Association (ABA) President Paulette Brown noted last week, one of the ABA’s primary goals — “to advance the rule of law” — requires both the president and the Senate to “fulfill constitutional responsibilities” to make, and to act promptly on, nominations to the federal courts. Senate Republicans’ obstructionist tactics are clearly contrary to this goal — bringing the same zero-sum wrangling and partisan gridlock to the judicial branch that has left so many Americans frustrated with Congress.

This obstructionism will have real consequences. Not only will it prevent the legal system from functioning as it should — leaving important questions potentially unresolved because of 4-4 ties — it has the potential to permanently alter the place and perception of the Supreme Court in American society. The court should be above this kind of bickering, serving as a beacon for impartial justice, its functioning unrestricted by congressional machinations. The rule of law depends on the trust and faith of the citizenry. Every day on which Senate Republicans turn Obama’s nomination ability into a political football, they erode that trust and faith.

It is time to end this dangerous game. Any senator who believes Garland is unqualified to sit on the Supreme Court is free to vote against his nomination. But Senate Republicans are not free to thwart the process our Constitution demands — not without threatening irreparable harm to the country.

Blumenthal is the senior senator from Connecticut, serving since 2011, and is a member of the Senate Judiciary Committee. He previously served as a law clerk for U.S. Supreme Court Justice Harry Blackmun. Frank is president-elect of the Connecticut Bar Association, president of the New England Bar Association and a delegate to the American Bar Association House of Delegates. The opinions expressed here are his own. Follow him on Twitter @montefrank1.