The avowed purpose of Senate Republicans to block all appointments made by Democrats serving as President of the United States is contrary to the Constitution of the United States.
While the Senate can block the appointment by the President of a given high court nominee, the failure to perform the Constitutional obligation to give its advice and consent to presidential nominees is a failure to perform an expressly stated function enumerated in Article II concerning the Executive Department of the Federal Government, and the corresponding obligation of the Senate of the United States stated there.
It is the Constitutional responsibility of the President to nominate persons to the United States Supreme Court. President Obama nominated Merrick Garland, a Federal Judge sitting on the D.C. Court of Appeals, and by the estimation of both parties well qualified to serve. Garland is absolutely the most moderate justice anyone could have expected Obama to name in order to fill the seat vacated by the death of Justice Antonin Scalia. The nation has waited an unprecedented 220 and now more days for the Senate to even begin to perform its advice and consent role mandated constitutionally in Article II.
The basis for this very long delay is not that it is not possible to do so. It is precisely because Senate Republicans said they believed that no appointments should be made by a president in the last year of their term in office. This is not supported anywhere in the Constitution of the United States. Now, Mitch McConnell, John McCain and Ted Cruz tell the nation that they will not fill this vacancy or any vacancy where a Democratic president is sitting in the White House.
This stand ill serves the American people whatever their political loyalties may be. The business of the Judicial Branch of government is always the people’s business. Anything that inhibits in any way the Supreme Court of the United States, the Constitution’s third branch of our Federal Government represents an incursion of one of the other branches of the Federal Government into its prerogatives, and in this case future existence of that branch of the Federal Government.
Even the most rabid right wing or Alt. Right Conservative Republican knows that all of this is entirely politically motivated. It does not represent anything that is legally justified at all.
The Judicial Power of our government is vested says the Constitution of the United States in the first section of Article III, in a Supreme Court of the United States establishing that branch. The number of and the number of justices serving on Federal Courts inferior to the Supreme Court is the province of the Legislative Branch of government. But there too the Advice and Consent responsibility must be performed.
Senator Ted Cruz’s statement that the number of Justices serving is up to the Congress is correct. The guy did go to Harvard Law School. But that by both precedent and actual legislation is the manner in which we determine the number of Supreme Court justices. The Constitution and legal precedent do not support what is proposed by GOP members of the Senate. They must make a new law, or win approval of an Amendment to the Constitution in order to do this.
The Judiciary Act of 1869 is what determines the number of justices servicing our U.S. Supreme Court. That law set the number at nine. Prior to that Republicans put 10 justices on the court in order to better oppose President Andrew Johnson and his Reconstruction policies after the American Civil War. We have had seven justices on the court by law and the Founders originally put five justices on the court.
The preference of previous members of Congress and the Founders for an odd number of judges probably dates back to the very origin of our government, and to English Common Law. You wish to have the court have the ability to reach a clear interpretation of our Constitution rather than be deadlocked. At present a number of deadlocked 4-4 decisions merely send it back to lower courts federally who have by jurisprudence sent these cases up to the Supreme Court for it to clarify.
Justice Stephen Breyer has said that the Supreme Court can operate with eight justices. It can as shown above. But he did not state that it operates best that way. And even Clarence Thomas has been critical of how this vacancy has been handled when he said recently that the Congress or inside the beltway official Washington generally, is broken.
Alexander Hamilton, a Founder who had the most to do with designing the Judicial Branch of our Federal Government said something in Federalist No. 77 that defines the intent of the Founders better on these points:
“The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive.”
Merrick Garland is by all standards and observers a fine and most excellent appointment to fill an existing vacancy on the court, as presently proscribed by law establishing nine justices of the court; not eight. In Article II of the Constitution of the United States the Senate is obligated to perform the function of advice and consent. President Obama with the best and highest of intentions is fulfilling his obligations here.
It would seem we have a case through refusal to take action of a de facto “rejection of a good one.” Yes, Mr. Hamilton, our Republican led and dominated Senate ought to receive full censure. A great way for that censure to be real and actual is to vote for any Democrat running for the Senate this year.
Tell the Republicans to do their jobs and meet their Constitutional obligations here. It is not too late for many of us to early vote or cast that vote on Election Day for the Democrat to hold these scoundrels responsible for what they refuse to do.