“Justice delayed is justice denied.” — Legal maxim
The refusal of Senate Republicans to allow any hearing on the nomination of Chief Judge Merrick Garland to the U.S. Supreme Court is a reckless and dangerous act. The senators are shirking their duty to defend and support the Constitution and in the process are causing grave damage to our country.
At best, the refusal to act is a violation of the senators’ sworn oath “to defend and support the Constitution.” At worst, it is an unpatriotic act. This latter characterization may appear harsh, but it is not. A patriot is “a person who loves and supports one’s country.” There is little love and support for our country in what the Senate Republicans are doing.
From the time of our founders, responsible civic leaders have attempted to minimize the influence of partisan politics on the judiciary and to preserve judicial independence. Alexander Hamilton said the courts of justice are “the bulwarks of a limited Constitution against legislative encroachments” and judicial independence is “requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which … sometimes disseminate among the people themselves.” The refusal to permit the president to do his duty to enable our country’s highest and most important “bulwark of a limited Constitution” to function properly is an “ill humor” foisted upon the American people by the Senate Republicans. There are enough ill humors in our society that sometimes disseminate among the people themselves without our elected representatives adding to the list.
This failure to act will lead to Supreme Court decisions that are inconclusive and non-precedential. There will be delays, re-hearings, unresolved issues, a waste of time and effort, and the absence of a ninth perspective on the court. Judges, litigants, executive officers, legislators, and citizens loathe the indecision, ambiguity, and dysfunction that can occur when a high appellate court lacks its full complement of justices. The legal maxim “Justice delayed is justice denied” aptly captures the essence of this scenario, a scenario that could drag on for up to a year or 18 months. There will be short-term winners and losers under this scenario; but, in the long-term, our country is the big loser. History will judge the senators’ failure to act harshly.
The process is clear
Most Americans were surprised by the unexpected death of Justice Antonin Scalia. Some wish they could turn back the clock. They cannot. A new justice must be nominated, confirmed, and sworn in. The process for selecting a new justice is clear: The president “shall have Power” to “appoint, . . . Judges of the (S)upreme Court.” President Obama has done his sworn duty by nominating Garland. The president has wisely selected “the best person available under the circumstances.” He has nominated a moderate, experienced, highly qualified, traditionalist jurist.
Garland has been lauded throughout his career as a lawyer, federal prosecutor and judge. Legal professionals, scholars, lawyers, judicial colleagues, political leaders and ordinary citizens have uniformly praised him. Democrats and Republicans have joined in this praise. Republican Sen. Susan Collins described Garland as being “well informed, thoughtful, impressive, extraordinarily bright and familiar with the Constitution on separation of government power into three branches.”
Garland’s stellar qualifications have created a dilemma for Senate Republicans. Faced with a highly qualified nominee, they dare not risk holding any hearing because doing so would enhance our understanding of how well qualified Garland is and highlight the shallowness of their reasons for refusing to give their “advice and consent.” To avoid having their base political motives exposed, they have opted for the current “no hearing” strategy. But this strategy leads to an additional dilemma: the need to formulate a rationale to support it.
Several rationales floated
Senate Republicans have floated several rationales as trial balloons in support of their indefensible decision not to act. Seeing most of these trial balloons deflate, they have settled upon a fabricated “rule” they have labeled the “Biden Rule.” But there is no such rule. It does not exist. Fabricating such a rule to justify their inaction is a ruse. Claiming there is a “Biden Rule” demonstrates an astounding lack of integrity that diminishes their credibility as lawmakers.
Time and space limit me to citing only a few of the many reasons why the so-call rule does not exist. First, candor requires citing the bit of factual honesty associated with the assertion — even though this bit of fact is being employed in a dishonest, disingenuous and deceptive manner to promote a fabricated rule. On June 25, 1992, Sen. Joseph Biden made a statement in which he recommended that President George H.W. Bush “not name a nominee until after the November election is completed.” Biden opined that, “Senate consideration of a new nominee under these circumstances (late June of a presidential election year) is not fair to the president, to the nominee or the Senate itself.” He elaborated by stating that, “If someone steps down, I highly recommend the president not name someone, not send a name up.” (Emphasis added).
There are problems with any claim that this recommendation constitutes a rule, much less that it applies to the current situation. Biden’s statements were made in late June, more than four months later than the mid-February time frame created by Justice Scalia’s death. There was no vacancy on the Supreme Court. The statements were made less than one week before the annual court term ended — a time when justices thinking of retirement are prone to resign. Biden was discussing a hypothetical vacancy, one that might be created by a sitting justice deciding to resign that summer before the fall presidential election. His hypothetical envisioned a justice purposefully deciding to step down during a presidential race, not a vacancy created by the unexpected death of a justice in February.
With no Supreme Court vacancy, there was no nominee to consider in 1992. Moreover, there was no proposal to adopt a rule or even a policy of delay or to give no consideration to a potential nominee. Biden did not categorically state that the next president should not make a nomination; he only indicated that under certain circumstances Senate consideration of a potential nominee be put off during late summer and fall. Moreover, Biden did not state there should be no hearings. To the contrary, Biden stated — even pledged — that the Judiciary Committee, which he chaired, would consider a nominee during the presidential election cycle “if the president consults and cooperates with the Senate or moderates his selection absent consultation” — precisely the steps Obama has taken here.
Senate action in 1992 under Biden’s leadership of the Judiciary Committee speaks loudly and forcefully against the so-called rule fabricated by Senate Republicans. The Congressional Record Research Service notes that the second session of the 102nd Congress (1992) is “particularly notable” for confirming 11 judicial nominees to federal appellate courts, more than in any other presidential election year in U.S. history and 53 federal district court judges. The 1992 Senate was considering nominees very close to when it adjourned sine die on Oct. 8.
A rewriting of the Constitution by fiat
Denying any hearing and fabricating a “rule” to support this inaction amounts to a rewriting of the Constitution by fiat to provide that the term of the president runs for slightly over three years, not the four years provided for in the Constitution. The Constitution is our most fundamental law. It should not be rewritten by partisan fiat.
Recent actions taken by senators from adjoining states — Sen. Charles “Chuck” Grassley of Iowa and Sen. Ron Johnson of Wisconsin — illustrate the sad side effects of this ongoing charade. On April 4, Grassley stood on the floor of the U.S. Senate Chamber and attacked Chief Justice John Roberts. Grassley inappropriately asserted that the chief justice had politicalized the Supreme Court and then, rhetorically addressing the chief justice, said “Physician heal thyself.”
Grassley’s attack on the chief justice was ill conceived and transparent. Wishing to discredit a credible messenger, he implemented the age-old strategy that a good offense is the good defense. Twice before Scalia’s death, the chief justice spoke out about the growing need to insulate the Supreme Court from the heightened level of partisan politics, bickering and dysfunction on display in Congress. The chief justice was concerned about the erosion of public confidence in the Court. In essence, the chief justice was doing his sworn duty under the Constitution to defend and support the institution he heads.
Grassley has compounded his failure to do his sworn duty by portraying the chief justice in a false light that brings dishonor to the Senate. The attack demeans the senator and his colleagues who condone it. The chief justice has every right to be concerned that partisan politics have the potential of tarnishing the Supreme Court and its reputation. The chief justice’s support of the Supreme Court as an institution and the integrity he brings to his position as chief justice are beyond reproach. Court observers, whether liberal or conservative, acknowledge this fact. My best advice to Grassley is “Physician, heal thyself.”
Johnson’s actions illustrate a different problem, an unwillingness to follow one’s best instincts. Initial signs indicated that the senator would do his sworn duty and support giving Judge Garland a hearing. But the senator changed course and placed his loyalty with partisan leadership and politics. The senator apparently caved to the dictates of senior colleagues and has become an avid and outspoken supporter of the Senate majority’s strategy to do nothing.
Why Johnson changed his mind can only be the subject of speculation; his failure to do the right thing is something that cannot be ignored. He has without question abdicated his sworn duty to support the Constitution. Like Grassley and other colleagues in the Senate majority, he should be held to account for this transgression.
An oath of office is a solemn and profound act. It is a public profession to follow a high standard of conduct and binds the oath taker to this standard. In “A Man for All Seasons,” Sir Thomas More’s daughter Meg pleaded with her father to save his own life by swearing an oath to Henry VIII that More did not believe in his heart. More responded to his daughter’s plea as follows:
When a man takes an oath Meg, he’s holding his own self in his own hands. Like water. And if he opens his fingers then he need not hope to find himself again. Some men aren’t capable of this, but I’d be loath to think your father one of them.
Swearing to abide by an oath binds one to that oath. This is why we have public officials take a public oath to defend and support the Constitution. It is not sufficient for a public official to put a copy of the Constitution in a vest pocket or purse and assert that the Constitution is with him or her every day. A person taking this oath must understand the Constitution, believe in it, support it and act in a way that is consistent with its mandates. Unfortunately, several Republican senators are capable of letting their oath to support the Constitution slip through their fingers like water.
Senate Republicans must bring an end to the current charade and the dysfunction they have created. It is within their power to do so, and only they can do it. As U.S. senators they have a sworn duty to act.
To them I say: It is not too late to do the right thing. Grant Garland a hearing so that the Senate can serve the people and honor our Constitution by collecting the information needed in order to decide how to vote and then vote. By doing so you will be fulfilling your obligation and sworn duty to support the Constitution by giving your “advice and consent” to the president. If you fail to do so, you should be held to account for your failure to do your duty by those who hold the ultimate sovereign power in our country: the people.
Paul H. Anderson is a retired Minnesota Supreme Court justice who served on the Minnesota Supreme Court for nearly 19 years and as chief judge of the Minnesota Court of Appeals for almost two years. Republican Gov. Arne Carlson appointed him to both judicial positions. He is known for his commitment to making the judicial system work well for the benefit of the common good and keeping the judiciary independent and free from partisan politics.
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