The Supreme Court Vacancy: This Is Not ‘The Bork Strikes Back’

March 8, 2016
Guest Post

by Ruben J. Garcia, professor of law, University of Nevada, Las Vegas, William S. Boyd School of Law

Imagine it is January 20, 2017. The Republican nominee for president is being sworn in on the steps of the Capitol. But Democrats have flipped the Senate with 54 seats to the Republicans’ 46 and now control the Senate Judiciary Committee. The Supreme Court has operated with eight justices for 11 months. Now imagine the Democratic leadership of the Senate proclaims its intention not to consider the nomination of the Republican president until any party has 60 votes so it can prevent any nominee from being confirmed without a clear majority of the “people’s branch.”

This scenario is the mere flip side of what the Senate leadership is currently doing by preemptively announcing that they will not meet with or hold a hearing on any Supreme Court nominee until the next president is inaugurated. Based on the precedent they are setting now, nothing compels Congress to hold a hearing in 2017, either. In fact the Constitution’s text is very brief on this point. Article II, Section 2, Clause 2 of the Constitution gives the president the power to appoint a number of offices in the Executive Branch, but also judges in the courts: “The President . . . shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court . . . .”

The purported justification, if any, of the Senate’s refusal to act is not constitutional but political, as they have all but admitted. Senate Majority Leader Mitch McConnell said, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” The fact that President Obama won the 2012 election with 62 percent of the Electoral College appears not to factor into their calculus. But the same justification can also be given after the presidential election, with divided control of the branches, suggesting that the will of the American people is not really clear.

Of course, this scenario could not be what the Founders intended. They set up a process of separated powers where both parties would have a role. They did not give the Senate a veto power over nominations; they elsewhere provided for a veto power for the President but nowhere else. The Senate majority’s obstructionism would be completely foreign to they who routinely approved nominees without incident in the early Republic.

Republicans and conservatives may claim this is simply a case of “the Bork Strikes Back” from the mid-1980s. Putting aside the obvious difference that Supreme Court nominee Robert Bork got a hearing and a vote, the opposition to Judge Bork was about his retrograde views of the Constitution, not the president’s right and duty to name Supreme Court nominees. While it is impossible to eliminate all vestiges of partisanship from the process, there is no other explanation for the Senate majority’s stance other than partisanship.

Here in Nevada, our two senators seem to be split over whether the Senate should consider the nomination―on party lines. Democratic Senate Minority Leader Senator Harry Reid has called for the president to nominate and the Republican-controlled Senate Judiciary Committee to hold a hearing and vote. Republican Senator Dean Heller, on the other hand, has said that “the president should respect the will of the people,” which seems to mean that he wants the next president to name the nominee. However, he has been the target of scorn by ultra-conservatives who promise a primary challenge if he does anything to advance President Obama’s nomination. If Senator Heller continues to cow tow to the forces of obstruction, many issues important to Nevadans will be left hanging without clear resolution—affirmative action, abortion, and immigration to name but a few. He will be putting ideology over his constituents, even though he hinted what might change his mind: “Who knows? Maybe it’ll be a Nevadan.”

The Framers of the Constitution set up a process―not an outcome. The president’s nominees are not guaranteed to be accepted by the Senate, but the “advice” part of the “advice and consent” duty requires the Senate to at least give the president’s nominees a fair hearing. The Framers of the Constitution also didn’t intend the Senate to exercise a preemptive veto on all the president’s nominees. But that is exactly what is happening—creating a dangerous precedent for future presidents of both parties.