On March 16, 2016,
President
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
Barack Obama
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...
nominated
Merrick Garland
Merrick Brian Garland (born November 13, 1952) is an American lawyer and jurist serving since March 2021 as the 86th United States attorney general. He previously served as a U.S. circuit judge of the U.S. Court of Appeals for the District of ...
for
Associate Justice
Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some sta ...
of the
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
to succeed
Antonin Scalia, who had died one month earlier. At the time of his nomination, Garland was the Chief Judge of the
.
This vacancy arose during Obama's
final year as president. Hours after Scalia's death was announced, Senate Majority Leader
Mitch McConnell
Addison Mitchell McConnell III (born February 20, 1942) is an American politician and retired attorney serving as the senior United States senator from Kentucky and the Senate minority leader since 2021. Currently in his seventh term, McConne ...
said he would consider any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president—to be elected later that year.
Senate Democrats criticized the move as being unprecedented, and responded saying that there was sufficient time to vote on a nominee before the election.
Scalia's death brought about an unusual, but not unprecedented, situation in which a
Democratic president had the opportunity to nominate a Supreme Court justice while the
Republicans controlled the
United States Senate
The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States.
The composition and pow ...
. Before 2016, such a situation had last arisen in 1895, when a Republican-led Senate confirmed Democrat
Grover Cleveland
Stephen Grover Cleveland (March 18, 1837June 24, 1908) was an American lawyer and politician who served as the 22nd and 24th president of the United States from 1885 to 1889 and from 1893 to 1897. Cleveland is the only president in American ...
's nomination of
Rufus Wheeler Peckham to the Court in a
voice vote
In parliamentary procedure, a voice vote (from the Latin ''viva voce'', meaning "live voice") or acclamation is a voting method in deliberative assemblies (such as legislatures) in which a group vote is taken on a topic or motion by responding vo ...
;
conversely, in 1988 a Democratic-led Senate had confirmed Republican
Ronald Reagan
Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
's nomination of
Anthony Kennedy
Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
and in 1991, a Senate held 57–43 by Democrats nevertheless confirmed
Justice Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
.
Political commentators at the time widely recognized Scalia as one of the most
conservative
Conservatism is a cultural, social, and political philosophy that seeks to promote and to preserve traditional institutions, practices, and values. The central tenets of conservatism may vary in relation to the culture and civilization i ...
members of the Court, and noted that—while many considered Merrick Garland a
centrist
Centrism is a political outlook or position involving acceptance or support of a balance of social equality and a degree of social hierarchy while opposing political changes that would result in a significant shift of society strongly to Left-w ...
, and he had been called "essentially the model, neutral judge"—a replacement less conservative than Scalia could have shifted the Court's ideological balance for many years into the future. The confirmation of Garland would have given Democratic appointees a majority on the Supreme Court for the first time since the 1970 confirmation of
Harry Blackmun
Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 to 1994. Appointed by Republican President Richard Nixon, Blac ...
.
The 11 members of the Senate Judiciary Committee's Republican majority refused to conduct the hearings necessary to advance the vote to the Senate at large, and Garland's nomination expired on January 3, 2017, with the end of the
114th Congress, 293 days after it had been submitted to the Senate.
This marked the first time since the
Civil War
A civil war or intrastate war is a war between organized groups within the same state (or country).
The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
that a nominee whose nomination had not been withdrawn had failed to receive consideration for an open seat on the Court. Obama's successor,
Donald Trump
Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021.
Trump graduated from the Wharton School of the University of Pe ...
(a Republican),
nominated
A candidate, or nominee, is the prospective recipient of an award or honor, or a person seeking or being considered for some kind of position; for example:
* to be elected to an office — in this case a candidate selection procedure occurs.
* ...
Judge
Neil Gorsuch
Neil McGill Gorsuch ( ; born August 29, 1967) is an American lawyer and judge who serves as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on January 31, 2017, and has served since ...
to fill the vacancy on January 31, 2017, soon after
taking office.
Background
Death of Antonin Scalia
![Antonin Scalia Official SCOTUS Portrait crop](https://upload.wikimedia.org/wikipedia/commons/0/00/Antonin_Scalia_Official_SCOTUS_Portrait_crop.jpg)
On February 13, 2016,
Associate Justice
Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some sta ...
Antonin Scalia died unexpectedly while at the
Cibolo Creek Ranch
Cibolo Creek Ranch is a historic place in Presidio County, Texas, United States. Established as a cattle ranch prior to the Civil War, it has been used in modern times for hunting and a shooting location for the movie industry. It includes a fort ...
in
Shafter, Texas
Shafter is a ghost town in Presidio County, Texas. The Texas Attorney General's Office gives a population of 11 as of the 2000 Census. It was named in honor of General William R. Shafter, who at one point commanded the nearby (relatively speakin ...
. He was the second of three Supreme Court justices to die in office during the 21st century: following
Chief Justice William Rehnquist
William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
in 2005; and followed by
Associate Justice
Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some sta ...
Ruth Bader Ginsburg
Joan Ruth Bader Ginsburg ( ; ; March 15, 1933September 18, 2020) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1993 until her death in 2020. She was nominated by President ...
in 2020. Before him, the last
incumbent
The incumbent is the current holder of an official, office or position, usually in relation to an election. In an election for president, the incumbent is the person holding or acting in the office of president before the election, whether seek ...
justice to die was
Robert H. Jackson in 1954.
Scalia had been appointed associate justice by
President
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
Ronald Reagan
Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
in September 1986 to fill the vacancy caused by the elevation of William Rehnquist to chief justice, and was unanimously confirmed by the Senate. He went on to become a part of the court's
conservative
Conservatism is a cultural, social, and political philosophy that seeks to promote and to preserve traditional institutions, practices, and values. The central tenets of conservatism may vary in relation to the culture and civilization i ...
bloc, often supporting
originalist
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...
and
textualist
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, th ...
positions on the interpretation of the
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
.
The vacancy on the Court created by Scalia's death came during a
U.S. presidential election year, the seventh time since 1900 that this has happened.
Article II, Section 2, Clause 2
Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the president of the Un ...
of the United States Constitution grants
plenary power
A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from the Latin term ''plenus'' ("full").
United States
In United States constitutional law, plenary p ...
to the president to nominate, and with the
advice and consent
Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts. It describes either of two situations: where a weak executive branch of a government enacts something previo ...
of the
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
, appoint justices to the Supreme Court. At the time of Scalia's death, the incumbent president was
Barack Obama
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...
, a member of the
Democratic Party Democratic Party most often refers to:
*Democratic Party (United States)
Democratic Party and similar terms may also refer to:
Active parties Africa
*Botswana Democratic Party
*Democratic Party of Equatorial Guinea
*Gabonese Democratic Party
*Demo ...
, while the
Republican Party held a 54–46 seat majority in the Senate.
Because of the
ideological composition of the Court at the time of Scalia's death, and the belief that President Obama could replace Scalia with a much more
liberal
Liberal or liberalism may refer to:
Politics
* a supporter of liberalism
** Liberalism by country
* an adherent of a Liberal Party
* Liberalism (international relations)
* Sexually liberal feminism
* Social liberalism
Arts, entertainment and m ...
successor, some concluded that an Obama appointee could potentially swing the Court in a liberal direction for many years to come, with potentially far-reaching political consequences.
Biden rule debate
Scalia's election-year death triggered a protracted political battle that did not end until 2017 after a new president had been
inaugurated
In government and politics, inauguration is the process of swearing a person into office and thus making that person the incumbent. Such an inauguration commonly occurs through a formal ceremony or special event, which may also include an inaugur ...
. The Senate's Republican leadership was quick to assert that the vacancy should not be filled until after the
2016 presidential election.
They cited a June 1992 speech by then-senator
Joe Biden, in which Biden argued that
President Bush should wait until after the election to appoint a replacement if a Supreme Court seat became vacant during the summer or should appoint a moderate acceptable to the then-Democratic Senate, as a precedent. Republicans later began to refer to this idea as the "Biden rule". Biden responded that his position was and remained that the president and Congress should "work together to overcome partisan differences" regarding judicial nominations.
The "Biden rule" has never been a formal rule of the Senate. PolitiFact noted that Biden's speech was later in the election year than when the GOP blocked Garland, there was no Supreme Court vacancy, there was no nominee under consideration, the Democratic-led Senate never adopted this as a rule, and that Biden did not object to Bush nominating judicial nominees after Election Day.
Democrats also countered that the U.S. Constitution obliged the president to nominate and obliged the Senate to give its advice and consent in a timely manner. Republicans argued in response that the Senate was fulfilling its obligation of advice and consent by saying that the next president should make the appointment. There were, however, 11 months left to President Obama's term at the time of Scalia's death, and the Democrats argued that no precedent existed for such a lengthy delay and that previous presidents had nominated individuals in election years. Democrats also argued that even if such a precedent existed, President Obama's term had sufficient time remaining that such a precedent would not apply. The precedent, known as the
Thurmond rule, dated back to President
Lyndon B. Johnson
Lyndon Baines Johnson (; August 27, 1908January 22, 1973), often referred to by his initials LBJ, was an American politician who served as the 36th president of the United States from 1963 to 1969. He had previously served as the 37th vice ...
's 1968 nomination of
Abe Fortas
Abraham Fortas (June 19, 1910 – April 5, 1982) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1965 to 1969. Born and raised in Memphis, Tennessee, Fortas graduated from R ...
to become chief justice, but had since been inconsistently applied.
On February 23, the 11 Republican members of the
Senate Judiciary Committee
The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a standing committee of 22 U.S. senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nominations ...
signed a letter to
Senate majority leader
The positions of majority leader and minority leader are held by two United States senators and members of the party leadership of the United States Senate. They serve as the chief spokespersons for their respective political parties holding t ...
Mitch McConnell
Addison Mitchell McConnell III (born February 20, 1942) is an American politician and retired attorney serving as the senior United States senator from Kentucky and the Senate minority leader since 2021. Currently in his seventh term, McConne ...
stating their unprecedented intention to withhold consent on any nominee made by President Obama, and that no hearings would occur until after January 20, 2017, when the next president took office. This position subsequently became known as the "McConnell rule" though also not a formal rule of the Senate. That August, McConnell, who played an instrumental role in keeping
Merrick Garland
Merrick Brian Garland (born November 13, 1952) is an American lawyer and jurist serving since March 2021 as the 86th United States attorney general. He previously served as a U.S. circuit judge of the U.S. Court of Appeals for the District of ...
from filling Scalia's vacant seat, declared to a crowd in Kentucky, "One of my proudest moments was when I looked at Barack Obama in the eye and I said, 'Mr. President, you will not fill the Supreme Court vacancy."
McConnell later called the question of whether the rule should become Senate policy "absurd", stating that "neither side, had the shoe been on the other foot, would have filled
he vacant seat
He or HE may refer to:
Language
* He (pronoun), an English pronoun
* He (kana), the romanization of the Japanese kana へ
* He (letter), the fifth letter of many Semitic alphabets
* He (Cyrillic), a letter of the Cyrillic script called ''He'' ...
.
Scholars and lawyers urging Senate to consider a nominee
On February 24, 2016, a group of progressive-leaning U.S. constitutional-law scholars sent an open letter to President Obama and the U.S. Senate urging the president to nominate a candidate to fill the vacancy and the Senate to hold hearings and vote on the nominee.
The letter, which was organized by the progressive
American Constitution Society
The American Constitution Society (ACS) is a progressive legal organization. ACS was created as a counterweight to, and is modeled after, the Federalist Society, and is often described as its progressive counterpart.
Founded in 2001 following ...
, stated that it would be "unprecedented" for the Senate to fail to consider a Supreme Court nominee, and "would leave a vacancy that would undermine the ability of the Supreme Court to carry out its constitutional duties."
The signatories wrote that "the Senate's constitutional duty to 'advise and consent'—the process that has come to include hearings, committee votes, and floor votes—has no exception for election years. In fact, over the course of American history, there have been 24 instances in which presidents in the last year of a term have nominated individuals for the Supreme Court and the Senate confirmed 21 of these nominees."
Among the 33 professors signing the letter were Dean
Erwin Chemerinsky
Erwin Chemerinsky (born May 14, 1953) is an American legal scholar known for his studies of United States constitutional law and federal civil procedure. Since 2017, Chemerinsky has been the dean of the UC Berkeley School of Law. Previously, he a ...
of the
University of California, Irvine School of Law
The University of California, Irvine School of Law is the law school at the University of California, Irvine. It is the fifth law school in the UC system. In September 2007, Erwin Chemerinsky was named as the law school's first dean. Chemerinsky ...
;
Adam Winkler
Adam Winkler (born July 25, 1967) is the Connell Professor of law at the UCLA School of Law. He is the author of '' We the Corporations: How American Businesses Won Their Civil Rights''Winkler, Adam (2018) WW Norton. ''and Gunfight: The Battle ov ...
of the
UCLA School of Law
The UCLA School of Law is one of 12 professional schools at the University of California, Los Angeles. UCLA Law has been consistently ranked by '' U.S. News & World Report'' as one of the top 20 law schools in the United States since the inception ...
;
Kermit Roosevelt III
Kermit Roosevelt III (born July 14, 1971) is an American author, lawyer, and legal scholar. He is a law professor at the University of Pennsylvania. He is a great-great-grandson of United States President Theodore Roosevelt and a distant cous ...
of the
University of Pennsylvania School of Law
The University of Pennsylvania Carey Law School (also known as Penn Law or Penn Carey Law) is the law school of the University of Pennsylvania, a Private university, private research university in Philadelphia, Pennsylvania. It is among the most ...
, and
Gene Nichol
Gene Ray Nichol, Jr. (born May 11, 1951) was the twenty-sixth president of the College of William & Mary in Williamsburg, Virginia, United States. He succeeded Timothy J. Sullivan and officially served from July 1, 2005, to February 12, 2008. It ...
of the
University of North Carolina School of Law
The University of North Carolina School of Law is the law school of the University of North Carolina at Chapel Hill. Established in 1845, Carolina Law is among the oldest law schools in the United States and is the oldest law school in North Caro ...
.
In a letter sent to President Obama on March 3, 2016, a different group of predominantly progressive scholars of American history, politics, and the law wrote to President Obama to "express our dismay at the unprecedented breach of norms by the Senate majority in refusing to consider a nomination for the Supreme Court made by a president with eleven months to serve in the position."
[ See als]
PDF version
of letter. The scholars wrote:
It is technically in the power of the Senate to engage in aggressive denial on presidential nominations. But we believe that the Framers' construction of the process of nominations and confirmation to federal courts, including the Senate's power of "advice and consent," does not anticipate or countenance an obdurate refusal by the body to acknowledge or consider a president's nominee, especially to the highest court in the land. The refusal to hold hearings and deliberate on a nominee at this level is truly unprecedented and, in our view, dangerous ...
The Constitution gives the Senate every right to deny confirmation to a presidential nomination. But denial should come after the Senate deliberates over the nomination, which in contemporary times includes hearings in the Judiciary Committee, and full debate and votes on the Senate floor. Anything less than that, in our view, is a serious and, indeed, unprecedented breach of the Senate's best practices and noblest traditions for much of our nation's history.
Signatories to this letter included, among others,
Thomas E. Mann
Thomas E. Mann (born September 10, 1944) is the W. Averell Harriman Chair and a senior fellow in Governance Studies at the Brookings Institution, , senior fellow at the
Brookings Institution
The Brookings Institution, often stylized as simply Brookings, is an American research group founded in 1916. Located on Think Tank Row in Washington, D.C., the organization conducts research and education in the social sciences, primarily in ec ...
;
Norman J. Ornstein, resident scholar at the
American Enterprise Institute
The American Enterprise Institute for Public Policy Research, known simply as the American Enterprise Institute (AEI), is a center-right Washington, D.C.–based think tank that researches government, politics, economics, and social welfare. ...
; presidential historian
Doris Kearns Goodwin
Doris Helen Kearns Goodwin (born January 4, 1943) is an American biographer, historian, former sports journalist, and political commentator. She has written biographies of several U.S. presidents, including ''Lyndon Johnson and the American Drea ...
;
Pamela S. Karlan
Pamela Susan Karlan (born 1959) is an American legal scholar who is the principal deputy assistant attorney general in the Civil Rights Division of the United States Department of Justice. She is on a leave of absence from Stanford Law School. A ...
of
Stanford Law School
Stanford Law School (Stanford Law or SLS) is the law school of Stanford University, a private research university near Palo Alto, California. Established in 1893, it is regarded as one of the most prestigious law schools in the world. Stanford La ...
;
Yale Law School
Yale Law School (Yale Law or YLS) is the law school of Yale University, a private research university in New Haven, Connecticut. It was established in 1824 and has been ranked as the best law school in the United States by '' U.S. News & Worl ...
professor
Harold Hongju Koh
Harold Hongju Koh (born December 8, 1954) is an American lawyer and legal scholar who served as the legal adviser of the Department of State in the Obama administration. He was nominated to this position by President Barack Obama on March 23, 20 ...
;
Geoffrey R. Stone
Geoffrey R. Stone (born 1946) is an American law professor and noted First Amendment scholar. He is currently the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School.
Biography
Stone completed a B.S. de ...
of the
University of Chicago Law School
The University of Chicago Law School is the law school of the University of Chicago, a private research university in Chicago, Illinois. It is consistently ranked among the best and most prestigious law schools in the world, and has many dist ...
; and historian
James M. McPherson
James Munro McPherson (born October 11, 1936) is an American Civil War historian, and is the George Henry Davis '86 Professor Emeritus of United States History at Princeton University. He received the 1989 Pulitzer Prize for '' Battle Cry of ...
of
Princeton University
Princeton University is a private university, private research university in Princeton, New Jersey. Founded in 1746 in Elizabeth, New Jersey, Elizabeth as the College of New Jersey, Princeton is the List of Colonial Colleges, fourth-oldest ins ...
.
On March 7, 2016, a group of 356 law professors and other legal scholars released a letter (organized through the progressive judicial advocacy group
Alliance for Justice
Alliance for Justice (AFJ) is a progressive judicial advocacy group in the United States. Founded in 1979 by former president Nan Aron, AFJ monitors federal judicial appointments. AFJ represents a coalition of 100 politically leftist groups that ...
) to the Senate leadership of both parties urging them "to fulfill your constitutional duty to give President Obama's Supreme Court nominee a prompt and fair hearing and a timely vote." The letter writers argued that Senate Republicans' announcement that they would refuse to consider any Obama nominee was a "preemptive abdication of duty" that "is contrary to the process the framers envisioned in
Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government."
[Over 350 law professors urge senators to fulfill their constitutional duty](_blank)
Alliance for Justice (March 7, 2016). See als
full text of letter
Among the signatories to this letter were prominent law professors
Charles Ogletree
Charles James Ogletree Jr. (born December 31, 1952) is an American attorney, law professor and the Jesse Climenko Professor at Harvard Law School, the founder of the school's Charles Hamilton Houston Institute for Race and Justice. He is also t ...
,
Kenji Yoshino
Kenji Yoshino (born May 1, 1969) is a legal scholar and the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law. Formerly, he was the Guido Calabresi Professor of Law at Yale Law School. His work involve ...
, and
Laurence Tribe
Laurence Henry Tribe (born October 10, 1941) is an American legal scholar who is a University Professor Emeritus at Harvard University. He previously served as the Carl M. Loeb University Professor at Harvard Law School.
A constitutional law sc ...
.
On March 9, 2016, in a letter to Obama and Senate leadership, a group of almost 250 prominent corporate lawyers urged the Senate to hold hearings on the president's nominee.
[Martha Neil]
Fill Scalia vacancy, urge nearly 250 corporate lawyers in letter to Obama and Senate leaders
''ABA Journal'' (March 9, 2016). See als
full text
of letter. The letter stated that "When a vacancy on the court arises, the Constitution is clear ... Article II, Section 2 states that the President 'shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court' ... Though the Senate may ultimately choose not to consent to the president's nominee, it would be unprecedented for the Senate to refuse to perform its 'advice and consent' role in this context. Not only does the Constitution direct the sitting president to nominate an individual to fill a vacancy on the court no matter whether it is an election year, nearly one third of all presidents have nominated a justice in an election year who was eventually confirmed."
The letter, organized by the
Lawyers' Committee for Civil Rights Under Law
The Lawyers' Committee for Civil Rights Under Law, or simply the Lawyers' Committee, is a civil rights organization founded in 1963 at the request of President John F. Kennedy. At the time, Alabama Governor George Wallace had vowed to resist cou ...
,
[Zoe Tillman]
Big Law Partners, General Counsel Urge Senate Action on SCOTUS Pick
''National Law Journal
''The National Law Journal'' (NLJ) is an American legal periodical founded in 1978. The NLJ was created by Jerry Finkelstein, who envisioned it as a "sibling newspaper" of the ''New York Law Journal''.
Originally a tabloid-sized weekly newspape ...
'' (March 9, 2016). also expressed concern about the "profound effect" of an under-staffed Court on the national economy, particularly in close cases.
Signatories to the letter came from a number of national
law firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients (individuals or corporations) about their legal rights and responsibilities, and to r ...
s, as well as counsel for
Google Inc.
Google LLC () is an American multinational technology company focusing on search engine technology, online advertising, cloud computing, computer software, quantum computing, e-commerce, artificial intelligence, and consumer electronics. I ...
On March 10, 2016, the Democratic
attorneys general
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exe ...
of 19 states, Puerto Rico, and the District of Columbia released a letter to Obama and Senate leadership in both parties calling for prompt Senate action on the president's (then yet-to-be-named) nominee.
[Karen Sloan & Zoe Tillman]
Letters Urge Prompt Review on Any Obama Nomination
''New York Law Journal'' (March 11, 2016). See als
full text
of letter. The letter stated that "the states and territories have a unique and pressing interest in a full and functioning Supreme Court" and that refusal to consider a nominee would "undermine the rule of law and ultimately impair the functioning of
state governments
A state government is the government that controls a subdivision of a country in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, ...
."
In March 2016, former
Utah governor Jon Huntsman Jr., a Republican, and former
Connecticut
Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York to the west, and Long Island Sound to the south. Its cap ...
U.S. senator
Joseph Lieberman
Joseph Isadore Lieberman (; born February 24, 1942) is an American politician, lobbyist, and attorney who served as a United States senator from Connecticut from 1989 to 2013. A former member of the Democratic Party, he was its nominee for Vi ...
, an independent, both co-chairs of the problem-solving group
No Labels
No Labels is an American political organization that supports centrist, bi-partisan policies and politics.
The group promoted and helped to start the moderate Problem Solvers Caucus in the U.S. House of Representatives It has also built a simi ...
, wrote that "there is no modern precedent for the blockade that Senate Republicans have put in place. Even highly-contentious nomination battles in the past, including those over
Robert Bork
Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American jurist who served as the solicitor general of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the U.S. Cour ...
and Justice
Clarence Thomas
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
, followed the normal process of hearings and an up-or-down vote. Leaving the current blockade in place could leave a seat on the Court vacant for the remainder of this term and perhaps the next as well, which could leave major cases in limbo until 2018. That is simply not acceptable. We cannot let today's crisis of leadership turn into a full-blown
constitutional crisis
In political science, a constitutional crisis is a problem or conflict in the function of a government that the political constitution or other fundamental governing law is perceived to be unable to resolve. There are several variations to this ...
."
[Jon Huntsman & Joseph Lieberman]
The Republican SCOTUS Blockade Is 'Not Acceptable'
''Time'' (March 25, 2016).
That same month,
John Joseph Gibbons
John Joseph Gibbons (December 8, 1924 – December 9, 2018) was a United States circuit judge of the United States Court of Appeals for the Third Circuit and later a partner at the law firm of Gibbons P.C. After service ub the US Navy he began ...
and
Patricia Wald
Patricia Ann McGowan Wald (September 16, 1928 – January 12, 2019) was an American judge who served as the Chief United States circuit judge of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) and as a judg ...
, the former chief judges of the
Third Circuit
The United States Court of Appeals for the Third Circuit (in case citations, 3d Cir.) is a federal court with appellate jurisdiction over the district courts for the following districts:
* District of Delaware
* District of New Jersey
* Easte ...
and
D.C. Circuit
The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate cou ...
, respectively, warned that the Senate's refusal to act on a Supreme Court nomination "would set a dangerous precedent, and invite attempts to extend it to other situations where the Executive and the Legislative branches are in political conflict with one another." Gibbons was appointed by a Republican president, while Wald was appointed by a Democratic president.
Law professors Robin Bradley Kar and Jason Mazzone, in a May 2016 study published in the ''
NYU Law Review Online'', called the situation "unprecedented," noting that the Senate had never before transferred a president's appointment power in comparable circumstances to an unknown successor.
Scholarly and legal counterarguments
George Mason University
George Mason University (George Mason, Mason, or GMU) is a public research university in Fairfax County, Virginia with an independent City of Fairfax, Virginia postal address in the Washington, D.C. Metropolitan Area. The university was origin ...
law professor
Ilya Somin
Ilya Somin (born 1973) is a law professor at George Mason University, an adjunct scholar at the Cato Institute, a blogger for the Volokh Conspiracy, and a former co-editor of the '' Supreme Court Economic Review'' (2006–2013). His research focu ...
argued the Constitution imposes no such duty upon the Senate to hold confirmation hearings and to give a nominee an up-or-down vote.
Jonathan H. Adler
Jonathan H. Adler is an American legal commentator and law professor at the Case Western Reserve University School of Law. He has been recognized as one of the most cited professors in the field of environmental law. His research is also credite ...
agreed, writing that while he personally has "long argued that the Senate should promptly consider and vote on every presidential judicial nominee, ... there is no textual or historical basis" for the contention that the Senate has a constitutional obligation to do so.
Eugene Volokh
Eugene Volokh (; born February 29, 1968 as Yevhen Volodymyrovych Volokh ( uk, Євге́н Володимирович Волох)) is an American legal scholar known for his scholarship in American constitutional law and libertarianism as well as ...
argues that there has not been a "constant practice of Senators agreeing that every nominee should be considered without regard to there being a looming election" and that "in the absence of such a practice, we come down to more results-oriented politics." George Mason University law professor
David Bernstein argued that while "preexisting constitutional norms" would suggest that "hearings and eventual votes on Supreme Court nominees" were mandatory, this norm is not required by the constitutional text and has been undermined by recent political practice.
Bernstein also noted that a Democratic-controlled Senate in 1960, in reaction to President
Eisenhower
Dwight David "Ike" Eisenhower (born David Dwight Eisenhower; ; October 14, 1890 – March 28, 1969) was an American military officer and statesman who served as the 34th president of the United States from 1953 to 1961. During World War II, ...
's 1956
recess appointment
In the United States, a recess appointment is an appointment by the president of a federal official when the U.S. Senate is in recess. Under the U.S. Constitution's Appointments Clause, the President is empowered to nominate, and with the advi ...
of
William J. Brennan Jr.
William Joseph "Bill" Brennan Jr. (April 25, 1906 – July 24, 1997) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1956 to 1990. He was the seventh-longest serving justice ...
, passed a Senate resolution "Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court's business."
Noah Feldman
Noah R. Feldman (born May 22, 1970) is an American academic and legal scholar. He is the Felix Frankfurter Professor of Law at Harvard Law School and chairman of the Society of Fellows at Harvard University. He is the author of 10 books, host of ...
, a constitutional law professor at
Harvard Law School
Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.
Each class ...
, has said "it's hard to argue that
he Constitution
He or HE may refer to:
Language
* He (pronoun), an English pronoun
* He (kana), the romanization of the Japanese kana へ
* He (letter), the fifth letter of many Semitic alphabets
* He (Cyrillic), a letter of the Cyrillic script called ''He'' ...
requires the
enateto put a nominee to a vote."
Vikram Amar
Vikram David Amar (born 1963) is an American legal scholar focusing on constitutional law, federal courts, and civil and criminal procedure. In August 2015, he became dean of the University of Illinois College of Law and the Iwan Foundation Pro ...
, constitutional law professor and dean of the
University of Illinois
The University of Illinois Urbana-Champaign (U of I, Illinois, University of Illinois, or UIUC) is a public land-grant research university in Illinois in the twin cities of Champaign and Urbana. It is the flagship institution of the Univer ...
College of Law
A law school (also known as a law centre or college of law) is an institution specializing in legal education, usually involved as part of a process for becoming a lawyer within a given jurisdiction.
Law degrees Argentina
In Argentina, ...
, wrote that "the text of the Constitution certainly does not use any language suggesting the Senate has a legal obligation to do anything," but that the "absolutist position" taken by Senate Republicans presents "grave risks" of escalating the judicial-appointment process into "extreme moves and countermoves."
Nomination
Potential candidates
Prior to Obama's nomination of Merrick Garland, media commentators speculated about
who might be nominated to fill the vacancy on the Court. A number of writers argued that the Senate Republicans would continue to block the confirmation process regardless of the nominee, and suggested that Obama may as well choose a candidate for political motives. For instance,
Michael Tomasky
Michael John Tomasky (born October 13, 1960) is an American columnist, progressive commentator, and author. He is the editor of ''The New Republic'' and editor in chief of ''Democracy''. He has been a special correspondent for ''Newsweek'', ''T ...
suggested that a nomination of
Mariano-Florentino Cuéllar
Mariano-Florentino "Tino" Cuéllar (born July 27, 1972) is an American scholar, academic leader, public official, jurist, and nonprofit executive currently serving as the 10th president of the Carnegie Endowment for International Peace. A former ...
may encourage
Latino
Latino or Latinos most often refers to:
* Latino (demonym), a term used in the United States for people with cultural ties to Latin America
* Hispanic and Latino Americans in the United States
* The people or cultures of Latin America;
** Latin A ...
s to vote in the
November 2016 election and "alter the presidential race dramatically as well."
Tom Goldstein
Thomas Che Goldstein (born 1970) is an American lawyer known for his advocacy before and blogging about the Supreme Court of the United States. He was a founding partner of Goldstein and Howe (now Goldstein & Russell), a Washington, D.C., firm s ...
, arguing that "
e nomination itself is part of the president's legacy, even if partisan politics prevents confirmation," recommended nominating a black woman to encourage black and female voters to participate in the election.
Goldstein concluded that the most likely candidate of such description was
Ketanji Brown Jackson
Ketanji Onyika Brown Jackson ( ; born September 14, 1970) is an American jurist who serves as an associate justice of the Supreme Court of the United States. Jackson was nominated to the Supreme Court by President Joe Biden on February 25, 202 ...
.
Other commentators suggested that Obama should compromise by selecting a centrist or even moderate conservative candidate. After analyzing voting trends for Supreme Court nominees since the confirmation of
Hugo Black in 1937, political scientists Charles Cameron and Jonathan Kastellec explained that "even an ideological twin of Justice
Stephen Breyer
Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and repl ...
—the most moderate of the court's current liberals—would fail to get even a majority of votes in the current Senate".
Without naming potential nominees, Cameron and Kastellec concluded that the Senate would only approve "a highly qualified moderate."
In that vein, Senate Minority Leader
Harry Reid
Harry Mason Reid Jr. (; December 2, 1939 – December 28, 2021) was an American lawyer and politician who served as a United States senator from Nevada from 1987 to 2017. He led the Senate Democratic Caucus from 2005 to 2017 and was the Sena ...
suggested the nomination of Republican
Governor
A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...
Brian Sandoval
Brian Edward Sandoval (; born August 5, 1963) is an American politician, academic administrator, and former federal judge who served as the 29th Governor of Nevada from 2011 to 2019.
A graduate of the University of Nevada, Reno, Sandoval began ...
. However, Sandoval soon withdrew his name from consideration. Zachary A. Goldfarb and
Jeffrey Toobin
Jeffrey Ross Toobin (; born May 21, 1960) is an American lawyer, author, blogger, and longtime legal analyst for CNN. He left CNN on September 4, 2022.
During the Iran–Contra affair, Toobin served as an associate counsel on this investigation ...
speculated that Obama might nominate
Sri Srinivasan
Padmanabhan Srikanth "Sri" Srinivasan (; born February 23, 1967) is an Indian-born American lawyer and jurist serving as the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. Before he was a circuit judge, Srinivas ...
because he "has the sort of impeccable credentials that are much beloved by the Supreme Court bar" and that his reputation as a moderate liberal may appeal to conservatives in the Senate.
By early March 2016, Obama reportedly scheduled interviews with five candidates—Merrick Garland, Ketanji Brown Jackson,
Jane L. Kelly, Sri Srinivasan, and
Paul J. Watford—before narrowing the list down to three candidates: Srinivasan, Garland, and Watford.
Garland had been interviewed for a seat on the Court in 2010, when Justice
Elena Kagan
Elena Kagan ( ; born April 28, 1960) is an American lawyer who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 10, 2010, and has served since August 7, 2010. Kagan ...
was selected to succeed the retiring
John Paul Stevens
John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
.
Back in 2010, Republican Senator
Orrin G. Hatch
Orrin Grant Hatch (March 22, 1934 – April 23, 2022) was an American attorney and politician who served as a United States senator from Utah from 1977 to 2019. Hatch's 42-year Senate tenure made him the longest-serving Republican U.S. senator ...
publicly said that he had urged Obama to nominate Garland as "a consensus nominee" who would easily win Senate confirmation. On March 11, 2016, Hatch said that refusal to now consider any Obama nominee to the high court was "the chickens coming home to roost", and he cited historical episodes as well as old quotations from Democratic senators to explain why.
Announcement
On March 16, 2016, President Obama nominated Merrick Garland, the Chief Judge of the
, to fill the vacant seat on the Court.
In a formal
Rose Garden
A rose garden or rosarium is a garden or park, often open to the public, used to present and grow various types of garden roses, and sometimes rose species. Most often it is a section of a larger garden. Designs vary tremendously and roses m ...
ceremony, Obama, flanked by Garland and
Vice President
A vice president, also director in British English, is an officer in government or business who is below the president (chief executive officer) in rank. It can also refer to executive vice presidents, signifying that the vice president is on t ...
Joe Biden, declared: "I have selected a nominee who is widely recognized not only as one of America's sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence. Presidents do not stop working in the final year of their term; neither should a Senator."
He went on to say: "To suggest that someone as qualified and respected as Merrick Garland does not even deserve a hearing, let alone an up-or-down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise—that would be unprecedented."
Garland then briefly spoke, stating that "fidelity to the Constitution and the law have been the cornerstone of my professional life" and promising to "continue on that course" if confirmed for the Supreme Court.
The White House simultaneously released a biographical video of Garland, featuring old photographs of Garland and his family, an interview with the judge, and archival footage of him at the scene of the
Oklahoma City bombing
The Oklahoma City bombing was a domestic terrorism in the United States, domestic terrorist truck bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, United States, on April 19, 1995. Perpetrated by two anti-federal go ...
, which Garland investigated.
[Julie Hirschfeld Davis]
White House Releases Video of Garland
''The New York Times'' (March 16, 2016). In the video, Garland states: "When I am standing with the President and he announces my nomination, I actually think it is going to feel a little bit like it is an
out-of-body experience
An out-of-body experience (OBE or sometimes OOBE) is a phenomenon in which a person perceives the world from a location outside their physical body. An OBE is a form of autoscopy (literally "seeing self"), although this term is more commonly us ...
."
The selection of the year old Garland, the oldest Supreme Court nominee since
Lewis F. Powell Jr.
Lewis Franklin Powell Jr. (September 19, 1907 – August 25, 1998) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1972 to 1987.
Born in Suffolk, Virginia, he graduat ...
in 1971 at age , caught
prediction market
Prediction markets (also known as betting markets, information markets, decision markets, idea futures or event derivatives) are open markets where specific outcomes can be predicted using financial incentives. Essentially, they are exchange-trad ...
s by surprise. On the
PredictIt
PredictIt is a New Zealand-based online prediction market that offers exchanges on political and financial events. PredictIt is owned and operated by Victoria University of Wellington with support from Aristotle, Inc. The company's office is loc ...
market, traders predicted that Srinivasan would be the nominee, trading as high as 97% on this outcome.
Response to the nomination
Immediately following the president's announcement of Garland, Senate Majority Leader,
Mitch McConnell
Addison Mitchell McConnell III (born February 20, 1942) is an American politician and retired attorney serving as the senior United States senator from Kentucky and the Senate minority leader since 2021. Currently in his seventh term, McConne ...
, announced a firm refusal to consider nominees to the Supreme Court until the next presidential inauguration. Citing what he called "the
Thurmond Rule", McConnell argued that there should not be a nomination so close to the next presidential and congressional election, but rather that the nomination should await the outcome of that election (which was 8 months away, and 10 months to the next presidential and congressional
inauguration
In government and politics, inauguration is the process of swearing a person into office and thus making that person the incumbent. Such an inauguration commonly occurs through a formal ceremony or special event, which may also include an inaugu ...
s):
:"The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction…The American people may well elect a President who decides to nominate Judge Garland for Senate consideration. The next President may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.’
...declaring:
:"The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next President nominates, whoever that might be."
Senator
Orrin Hatch
Orrin Grant Hatch (March 22, 1934 – April 23, 2022) was an American attorney and politician who served as a United States senator from Utah from 1977 to 2019. Hatch's 42-year Senate tenure made him the longest-serving Republican U.S. senato ...
said: "I think well of Merrick Garland. I think he is a fine person. But his nomination does not in any way change current circumstances." Soon thereafter, Senator
Jeff Flake said that Garland should not be confirmed unless
Hillary Clinton
Hillary Diane Rodham Clinton ( Rodham; born October 26, 1947) is an American politician, diplomat, and former lawyer who served as the 67th United States Secretary of State for President Barack Obama from 2009 to 2013, as a United States sen ...
wins the November presidential election. He argued that should Clinton win, Garland should be confirmed in the Senate's
lame-duck session
A lame-duck session of Congress in the United States occurs whenever one Congress meets after its successor is elected, but before the successor's term begins. The expression is now used not only for a special session called after a sine die adjou ...
because he is less liberal than any nominee Clinton might put forward. After meeting with Garland in April, Flake reiterated this position.
Hatch echoed this sentiment, saying that he was "open to resolving this
arland's nomination after a Clinton winin a lame-duck
ession in December"
By the beginning of April however, a total of 29 Republicans had announced that even after election, regardless of its outcome, they would not consider the Garland nomination.
In April, two Republican Senators,
Jerry Moran
Gerald Wesley Moran ( ; born May 29, 1954) is an American lawyer and politician who is the senior United States senator from Kansas, a seat he has held since 2011. A member of the Republican Party, he was chair of the National Republican Senator ...
and
Lisa Murkowski
Lisa Ann Murkowski ( ; born May 22, 1957) is an American attorney and politician serving as the senior United States senator for Alaska, having held that seat since 2002. Murkowski is the second-most senior Republican woman in the Senate, after S ...
, after weeks earlier expressing support for proceeding with hearings as a part of the nomination process, had reversed their positions, saying that they now opposed hearings on Garland's nomination. Two other Republicans,
Mark Kirk
Mark Steven Kirk (born September 15, 1959) is a retired American politician and attorney who served as a United States senator from Illinois from 2010 to 2017, and as the United States representative for Illinois's 10th congressional district fr ...
and
Susan Collins
Susan Margaret Collins (born December 7, 1952) is an American politician serving as the senior United States senator from Maine. A member of the Republican Party, she has held her seat since 1997 and is Maine's longest-serving member of Co ...
, expressed their support for hearings and an up-or-down vote on Garland, with Collins also supporting Garland's nomination.
[ Some Republicans, including Ted Cruz and ]John McCain
John Sidney McCain III (August 29, 1936 – August 25, 2018) was an American politician and United States Navy officer who served as a United States senator from Arizona from 1987 until his death in 2018. He previously served two terms ...
, suggested that the Senate might not confirm any nominee to replace Scalia, particularly if Democrats retain control of the presidency.
Donald Trump
Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021.
Trump graduated from the Wharton School of the University of Pe ...
, a candidate in the 2016 Republican Party presidential primaries at the time of Scalia's death, declared his opposition to the Garland nomination when it was announced, maintaining that picking a successor to Scalia should be done by the next president. Trump later released two lists of potential Supreme Court nominees which he would use to guide his Supreme Court nominations if elected president.
In April 2016, a letter signed by sixty-eight of Garland's former law clerks urging his confirmation was delivered to Senate leaders. The ''Washington Post'' summarized the letter as painting "a familiar portrait of Garland as a careful judge, a hardworking public servant and a devoted family man." The former clerks wrote: "There are not many bosses who so uniformly inspire the loyalty that we all feel toward Chief Judge Garland. Our enthusiasm is both a testament to his character and a reflection of his commitment to mentoring and encouraging us long after we left his chambers."
On May 2, eight former Solicitors General of the United States endorsed Garland as "superbly qualified", including Republicans Paul Clement
Paul Drew Clement (born June 24, 1966) is an American lawyer who served as U.S. Solicitor General from 2004 to 2008 and is known for his advocacy before the U.S. Supreme Court. He established his own law firm, Clement & Murphy, in 2022 after le ...
, Gregory G. Garre
Gregory G. Garre (born November 1, 1964) is an American lawyer who served as the 44th United States Solicitor General from June 19, 2008, to January 16, 2009. He is currently a partner at Latham & Watkins, a private law firm.
Life and education ...
, Theodore Olson
Theodore Bevry Olson (born September 11, 1940) is an American lawyer, practicing at the Washington, D.C., office of Gibson, Dunn & Crutcher. Olson served as United States Assistant Attorney General of the Office of Legal Counsel (1981–1984) ...
, and Ken Starr. On June 21, the American Bar Association
The American Bar Association (ABA) is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. Founded in 1878, the ABA's most important stated activities are the setting of acad ...
's Standing Committee on the Federal Judiciary granted Garland its "well-qualified" rating. Commenting on his integrity, the ABA noted: "Most remarkably, in interviews with hundreds of individuals in the legal profession and community who knew Judge Garland, whether for a few years or decades, not one person uttered a negative word about him."
In August 2016, Steve Michel, a New Mexico lawyer, filed a lawsuit in federal court seeking to compel Republican leaders in the Senate to take a vote on the nomination. On November 17, U.S. District Judge Rudolph Contreras
Rudolph Contreras (born December 6, 1962) is a United States district judge of the United States District Court for the District of Columbia. He also serves as Presiding Judge on the United States Foreign Intelligence Surveillance Court.
In De ...
dismissed the lawsuit, finding that the plaintiff, who had simply alleged he was a voter, had no standing
Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...
to sue.
Over 150,000 people signed a "We the People
The Preamble to the United States Constitution, beginning with the words We the People, is a brief introductory statement of the Constitution's fundamental purposes and guiding principles. Courts have referred to it as reliable evidence o ...
" petition posted in November 2016 on the White House website asking President Obama to independently appoint Garland to the Supreme Court, espousing the theory that the Senate had waived its advise and consent role. The petition received an official White House response, but the administration did not embrace the petitioners' point of view.
Expiration of the nomination
Under long-standing Senate rules, nominations still pending when the Senate adjourns at the end of a session are returned to the president (unless the Senate, by unanimous consent
In parliamentary procedure, unanimous consent, also known as general consent, or in the case of the parliaments under the Westminster system, leave of the house (or leave of the senate), is a situation in which no member present objects to a prop ...
, waives the rule). Garland's nomination expired on January 3, 2017, at the end of the 114th Congress, after languishing 293 days.
Barack Obama was succeeded by Donald Trump on January 20, 2017. Shortly afterward, President Trump nominated
A candidate, or nominee, is the prospective recipient of an award or honor, or a person seeking or being considered for some kind of position; for example:
* to be elected to an office — in this case a candidate selection procedure occurs.
* ...
Neil Gorsuch
Neil McGill Gorsuch ( ; born August 29, 1967) is an American lawyer and judge who serves as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on January 31, 2017, and has served since ...
to fill the Scalia vacancy. Gorsuch was confirmed by the Senate on April 7, 2017.
Two years later, in May 2019, Senator McConnell was asked what he would do if a Supreme Court justice were to die in 2020, an election year. He stated that the Senate would fill such a vacancy. McConnell repeated the statement in September 2020, following the death of associate justice Ruth Bader Ginsburg
Joan Ruth Bader Ginsburg ( ; ; March 15, 1933September 18, 2020) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1993 until her death in 2020. She was nominated by President ...
, citing a 2018 midterm elections
The 2018 United States elections were held on Tuesday, November 6, 2018. These midterm elections occurred during Republican Donald Trump's term. Democrats made a net gain of 41 seats in the United States House of Representatives, gaining a majo ...
mandate "to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary."
On September 26, 2020, Trump announced that he would nominate
Nomination is part of the process of selecting a candidate for either election to a public office, or the bestowing of an honor or award. A collection of nominees narrowed from the full list of candidates is a short list.
Political office
In the ...
Amy Coney Barrett
Amy Vivian Coney Barrett (born January 28, 1972) is an associate justice of the Supreme Court of the United States. The fifth woman to serve on the court, she was nominated by President Donald Trump and has served since October 27, 2020. ...
as Ginsburg's successor. Though many Democrats and some commentators contended that Republicans violated the precedent they had established for Garland, her appointment to the court was confirmed by Senate on October 26, eight days before the 2020 presidential election
This national electoral calendar for 2020 lists the national/federal elections held in 2020 in all sovereign states and their dependent territories. By-elections are excluded, though national referendums are included.
January
*5 January:
**C ...
.
On January 21, 2021, Trump's newly inaugurated successor Joe Biden announced Garland's nomination to the post of US Attorney General
The United States attorney general (AG) is the head of the United States Department of Justice, and is the chief law enforcement officer of the federal government of the United States. The attorney general serves as the principal advisor to the p ...
, and after approval by the US Senate by a vote of 70-30, Garland was sworn into office on March 11.
Effect of vacancy on rulings
Scalia's death left the court with eight judges for a majority of its 2015 term and the beginning of its 2016 term, and the vacancy was the second-longest since 1900. With the vacancy persisting for some time, the Court showed a reluctance to accept new cases. The Court's slow pace in accepting new cases reflected "an increased cautiousness considering the real possibility of 4–4 deadlocks on anything ideologically divisive".[Lawrence Hurley]
"Divided U.S. Supreme Court cautious about taking new cases"
Reuters (April 4, 2016). From the time of Scalia's death in late February 2016 until the first week of April 2017, the Court accepted only three cases, none likely to be controversial. By contrast, over the previous five years the Court took up an average of eight cases over the same period.
For cases that were not decided before his death, Justice Scalia's votes were not counted, with the cases decided by the remaining eight members of the Court. When the Court issues any ruling with votes split 4–4, the Court does not publish a written opinion with respect to the merits of the case and the ruling of the lower court is affirmed, although the Court's affirmance has no effect as precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
in future cases.
Citing the Court's practices following the death of Justice Robert H. Jackson in 1954, Tom Goldstein of SCOTUSblog
''SCOTUSblog'' is a law blog written by lawyers, law professors, and law students about the Supreme Court of the United States (sometimes abbreviated "SCOTUS"). Formerly sponsored by Bloomberg Law, the site tracks cases before the Court from th ...
suggested in February 2016 that the Court was more likely to set evenly-divided cases for reargument after a new justice is appointed to the Court. However, the Court split 4–4 in at least five cases of the 2015 term:
* '' Friedrichs v. California Teachers Association'', an important case on the funding of public-sector labor unions;
* ''Hawkins v. Community Bank of Raymore Hawkins may refer to:
Places United States
*Hawkins, Idaho, an unincorporated community
* Hawkins Ranch, a historic ranch in Matagorda County, Texas
*Hawkins, Texas
* Hawkins, Wisconsin, a village
* Hawkins (town), Wisconsin, a town
* Hawkins Corn ...
'', a case on the application of gender discrimination
Sexism is prejudice or discrimination based on one's sex or gender. Sexism can affect anyone, but it primarily affects women and girls.There is a clear and broad consensus among academic scholars in multiple fields that sexism refers primaril ...
laws to loan guarantors;
* ''Franchise Tax Board of California v. Hyatt'', in which the Court deadlocked on the question of whether '' Nevada v. Hall'' should be overruled;
* ''Dollar General Corp. v. Mississippi Band of Choctaw Indians
''Dollar General Corp. v. Mississippi Band of Choctaw Indians'', 579 U.S. ___ (2016), was a United States Supreme Court case in which the Court was asked to determine if an American Indian tribal court had the jurisdiction to hear a civil case ...
'', a case involving the jurisdiction of tribal court
Tribal sovereignty in the United States is the concept of the inherent authority of indigenous tribes to govern themselves within the borders of the United States.
Originally, the U.S. federal government recognized American Indian tri ...
s;
* ''United States v. Texas
''United States v. Texas'' may refer to the following United States Supreme Court cases:
* ''United States v. Texas'' (2016), 579 U.S. ___ (2016), a case in which the Court considered the legality of the Deferred Action for Parents of Americans p ...
'', a highly watched case in which the Court split 4–4 on the constitutionality of the Deferred Action for Parents of Americans Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), sometimes called Deferred Action for Parental Accountability, was a planned United States immigration policy to grant deferred action status to certain undocumented im ...
(DAPA) program.[Adam Liptak & Michael D. Shear]
Supreme Court Tie Blocks Obama Immigration Plan
''New York Times'' (June 23, 2016).
See also
* Barack Obama Supreme Court candidates
President Barack Obama made two successful appointments to the Supreme Court of the United States. The first was Judge Sonia SotomayorMark SilvaSonia Sotomayor is Obama's Supreme Court nominee ''Los Angeles Times'' (May 26, 2009). to fill the va ...
* List of nominations to the Supreme Court of the United States
The Supreme Court of the United States is the highest ranking judicial body in the United States. Established by Article III of the Constitution, the Court was organized by the 1st United States Congress through the Judiciary Act of 1789, whic ...
* Unsuccessful nominations to the Supreme Court of the United States
References
External links
"U.S. Senators on the nomination of Merrick Garland,"
in Ballotpedia
Ballotpedia is a nonprofit and nonpartisan online political encyclopedia that covers federal, state, and local politics, elections, and public policy in the United States. The website was founded in 2007. Ballotpedia is sponsored by the Lucy Bur ...
"What every Republican senator has said about filling a Supreme Court vacancy in an election year,"
by PBS News Hour
''PBS NewsHour'' is an American evening television news program broadcast on over 350 PBS member stations. It airs seven nights a week, and is known for its in-depth coverage of issues and current events.
Anchored by Judy Woodruff, the progr ...
Further reading
*
*
{{DEFAULTSORT:Garland, Merrick, Supreme Court Nomination
Nominations to the United States Supreme Court
2016 in American law
2016 in American politics
2016 controversies in the United States
114th United States Congress
Presidency of Barack Obama
2016 United States presidential election