Let’s keep Supreme Court above politics

The U.S. Supreme Court stands at the helm of one of our most important branches of government.  Every term, critical cases come before the Court involving core areas of American life, including cases involving alleged violations of the Constitution or federal law.  These cases tend to be of enormous interest to the public. In the wake of Justice Scalia’s death and certain members of the Senate Judiciary Committee refusing to consider any nominee, we now face a looming constitutional crisis.  We should not allow politicians to stand by and use the Court as a pawn in a political game.  Any effort that seeks to play politics with the Court threatens to undermine not only the smooth operation of the Supreme Court but also the faith of the American people in the rule of law.  

The principle that with great power comes great responsibility is firmly embedded in our founding document. The Constitution invests Senators with tremendous power to carry out the will of their constituents, but it also imposes upon them definite duties. Article II, Section 2, contains one of those duties: to advise and either grant or deny consent for the president’s nominees to the Supreme Court of the United States. The Constitution thus makes clear that the current president is to have the primary role in selecting individuals to fill vacancies on the Court; the Senate’s role, though important, is both secondary and mandatory. While the Senate remains free to reject the president’s nominee, nowhere does the Constitution contemplate that the Senate could prevent a sitting president from making such a selection through deliberate inaction.  

{mosads}The clarity of these basic principles is revealed by even the most cursory review of the historical record. Examples of Supreme Court nominees confirmed during election years begin in 1800 with the confirmation of President John Adam’s nominee John Marshall and extend to a member of the current Court: Justice Anthony Kennedy was nominated by President Ronald Reagan and confirmed by a Democrat-controlled Senate in 1988. Since 1975, the average time from nomination to confirmation is 67 days, and the Senate has given every person appointed to the Court a prompt hearing and vote within 100 days.  

The American people understand these basic principles. Opinion polls conducted within the past week have repeatedly demonstrated that a majority of Americans want the Supreme Court vacancy to be filled quickly. Any appeal to “the will of the people” to justify obstructionism therefore falls on deaf ears. The people have already expressed their will—in 2012, when they elected the current president, and in 2014, when they elected the Senate as it is currently constituted. True faithfulness to the will of the people requires our current elected leaders to fulfill their constitutional responsibility to fill the vacancy on the Supreme Court.

Moreover, the Supreme Court itself makes these principles.  On its website, the Court notes in clear terms: the “[p]ower to nominate the Justices is vested in the President of the United States, and appointments are made with the advice and consent of the Senate.”  

On a more practical level, the Supreme Court needs a full contingent of nine justices to do its job effectively. Many of the most important cases in history have been decided by one-vote margins. This includes cases that the civil rights community has lauded—such as last term’s Texas Department of Housing v. Inclusive Communities Project—as well as those that were not, such as Washington v. Davis. Regardless of our sentiments about the outcomes of particular cases, however, the importance of a Supreme Court vested with the power to resolve complex and divisive legal issues is undeniable.

Delay in filling Justice Scalia’s seat on the Court leaves it with only eight justices, creating the distinct possibility of equally divided decisions that do not have the force of binding precedent. One of the Supreme Court’s chief responsibilities is to resolve disagreements between the twelve appellate circuits, often referred to as “circuit splits,” about a particular question of law. The highest profile circuit split in recent years arose when the Sixth Circuit disagreed with its sister circuits regarding the constitutionality of state bans against same-sex marriage. The Supreme Court took the case to resolve the split, striking down the bans by a one-vote margin. Each Term, approximately 7,000-8,000 new cases are filed with the Court.  On average, the Court will grant plenary review in about 80 of those cases, hearing oral arguments by attorneys and dispose of about 100 more cases without such review. Every day the Court sits without a tie-breaking vote is a day on which it cannot perform its crucial function of resolving conflicts and establishing uniform interpretation of law to guide the work of lower courts across the country. Allowing the Court to proceed for two terms in such a state would be unprecedented and have damaging collateral consequences for our entire federal judicial system.   

Already we are witnessing the impact of an unfilled seat on the Court.  Just this past Thursday, Dow Chemical entered into the 11^th hour settlement in a case involving allegations of price fixing of polyurethane. A spokesperson for Dow Chemical noted, “With this changing landscape, the unknowns, we just decided to put this behind us.”  We need a Court that is prepared to address conflicts and controversies that come before it. 

The role of a fully functional Supreme Court is thus embedded within the Constitution and indispensable to American notions of justice, law, and order. No doubt, the president will soon exercise his constitutional responsibility to nominate a successor to Justice Scalia, as he should.  And when he does, it is time for the Senate to fulfill its constitutional responsibility and grant that nominee full and fair consideration and a vote.  The world is watching.

Clarke is president and executive director of the national Lawyers’ Committee for Civil Rights Under Law.