Your Turn: Senate’s stand spurs constitutional concerns
The refusal of Senate Republicans to consider President Obama’s nomination of Merrick Garland for the U.S. Supreme Court raises serious constitutional issues.
The constitutional requirements are clear. Section 2 of Article II provides that the president is to “nominate” and the Senate is to “advise and consent.” If the president had not made a nomination to fill the Scalia vacancy, he would have been guilty of a serious dereliction of duty. Similarly, if senators refuse even to consider the president’s nomination, those senators will be guilty of dereliction of duty.
If the Republicans hold hearings on Garland, conclude that he is not qualified and vote him down, that is certainly their right. But under the Constitution it is not their right to refuse even to consider the nomination.
There is no precedent for the Republicans’ refusal to grant Garland a hearing. There is plenty of time for full vetting of Garland so that, if qualified, he can join the court prior to the beginning of its next term in October.
President Obama was elected and then re-elected. More than 65 million Americans voted for him in 2012. To argue that “the people have not yet spoken” is nonsense.
President Obama nominated a highly regarded centrist judge who has been fulsomely praised by both Republican and Democrats, as well as Chief Justice Roberts. Judge Garland would bring objectivity and compromise at a time when those are badly needed.
If the Republicans can refuse to consider Obama’s nominee, then Democrats can equally well refuse to consider a Trump or Cruz nominee. Republican refusal to consider Garland could trigger a cycle of retaliation that would leave the Scalia seat vacant for years.
If the Republicans refuse to consider Garland, there will be an important lesson for both parties: Nothing can be gained from nominating a centrist, and there is nothing to lose from nominating a partisan candidate. There will be few centrist nominees in the future, and the Supreme Court will become increasingly politicized.
If elected officials can with impunity outright refuse to perform their constitutional duties, our government has serious problems.
— Martin Dickinson, now retired, was formerly Schroeder Distinguished Professor of Law at Kansas University.