Federal Courts and Nominations

Senate Republicans’ Reckless Move Could Open Real Debate on Vital Issues

There is nothing new, unfortunately, about the Senate refusing to vote on President Obama’s judicial nominees. In fact, there are 39 such nominees waiting for Senate consideration. This is already a shameful failure of the Senate to do its constitutional job to act on presidential nominations.

But if the Senate were to refuse to even hold a hearing to consider a Supreme Court nominee, especially in an election year? That’s a whole new ballgame. The vacancy, and the court’s 4-4 ideological split, would likely persist across two Supreme Court terms, months into 2017. Such an extended vacancy would be unprecedented. And the fact that some senators are resolved to maintaining this situation is irresponsible. 

As this confirmation battle plays out, with the possibility that only the November election will restore the court to its full complement of nine justices, Americans will be focusing on the court and the fundamental rights that it regularly decides. This standoff should spark extended conversations about democracy and campaign finance, racial justice and equality, federalism and government action, as well as the role of the courts themselves and whether they still serve as a place where individuals can seek redress for bad behavior by big business.

Voters need only look at the issues currently on the court’s docket to know what is at stake. In just a few weeks, the justices will hear a challenge to state laws that severely restrict access to abortion. Later in March, the court will consider the administration’s religious accommodation for non-profit organizations that oppose the Affordable Care Act’s contraception coverage requirement. In April, the court will assess key parts of President Obama’s immigration policies, which affect millions of families currently living under a cloud of uncertainty. Earlier in the term, the court heard arguments in cases involving affirmative action, public-sector unions, and voting rights.

As the Court attempts to hobble along without its full complement of justices and resolve these weighty issues, the voters will no doubt reflect on the issues behind these high-profile cases—and the need for the Court to be able to conduct its profoundly important work properly.

Senators can try to avoid their constitutional duty to consider the President’s candidate to replace Justice Scalia but they will not be able to escape the spotlight shone on these shameful obstructionist tactics, nor the debate about a range of important issues that will inevitably result.

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