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A sworn duty to act: In not holding hearings on Garland, Senate Republicans are causing grave damage to the nation

REUTERS/Kevin Lamarque
Grant Merrick 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.

“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.

Justice Paul Anderson

mncourts.gov
Justice Paul H. Anderson, now retired

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This failure to act will lead to Supreme Court decisions that are inconclusive and non-precedential.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.”

Changed course

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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Comments (12)

  1. Submitted by Greg Kapphahn on 08/22/2016 - 09:25 am.

    For Today’s Top Republicans

    there is no “we,” in a national, constitutional sense,…

    there is only “me:”

    what will gain ME power,…

    what will fill MY campaign coffers (and get “independent” groups to run ads against my opponent),…

    what will guarantee ME a very lucrative position with a lobbying or financial firm after I leave office,…

    etc.

    For our current Republican political leaders there is no such thing as “the people,”…

    whose interests they were elected to serve.

    There is only, for each of them, “me,”….

    and the only question of governing is this:

    how will what I do serve MY OWN interests best?

    Sadly, when it comes to Judge Garland, all those “me” considerations stand as barriers to the Republican senators meeting their moral obligation,…

    to carry out constitutionally-mandated government “of the people, by the people, and for the people.”

    For them, “Me” trumps everything else.

  2. Submitted by Hiram Foster on 08/22/2016 - 10:18 am.

    Biden rule

    It is remarkably easy to refute the notion that the refusal to consider the Garland nomination is based on some sort of exalted political principle. A simple thought experiment does the trick.

    Does anyone doubt that is it were a Republican president in the last year of his presidency who was submitting a nominee to a Republican senate, the nominee would be considered and approved in short order? Clearly, the unwillingness to consider Garland isn’t based on any broad constitutional principle, or any suddenly emergent appreciation of the wit and wisdom of a former senator. Rather, it’s demonstrably obvious that Republican intransigence is based solely on party affiliation of the president making the nomination.

    Consider another, in my opinion, more relevant precedent. HBO recently did a documentary on the confirmation of Clarence Thomas, a far more divisive figure in terms of judicial philosophy than Judge Garland is today. Back then, when a Republican president submitted a nominee to a Democrat controlled senate, Judge Thomas, unlike Judge Garland, was given full consideration. Despite the fact that then Judge Thomas did not receive majority approval from the Judiciary Committee, then headed by Senator Joe Biden, his nomination was sent to the floor for consideration, where it was ultimately approved by a Democrat majority Senate.

    I submit that a decent and fair consideration, along with a due respect for the president’s constitutional prerogative to nominate judges and justices, is the true Biden Rule, one which this senate today is in clear and reckless violation.

  3. Submitted by Jim Million on 08/22/2016 - 11:05 am.

    These Days?

    Does anyone truly believe a Republican President submitting a nominee to an antagonistic Senate controlled by Democrats would receive different reaction and results in a similar situation and election year?

    This topic has been thoroughly discussed in these pages earlier this year. Nothing, absolutely nothing, has changed in the scenario. No one would get this done in such an election year as this. The simple timeline of calendar and various significant 2016 events precluded action…by anyone. If we are about to re-litigate this subject, may we simply cut/paste our archived comments from March/April? I’m pretty sure those positions have not changed, either.

    Let’s be honest, and cease this political nonsense. The nation is not in danger. This SCOTUS “crisis” is simple political gamesmanship…and that goes on all the time everywhere on every issue these days. This is one truly non-partisan characteristic of our times.

    In short, the United States has effectively had no practical urge or need to seat a new Justice until the legislative branch settles into its new complement. We can wait. In the meantime, various cases have been returned to lower courts for re-consideration, likely as they should have been in any case. Does anyone truly argue that lower courts have reconciled matters very well lately? Are perhaps too many cases of lower court default burdening the SCOTUS calendar, in any case?

    It will happen by the end of January, if not somewhat earlier. People who do believe in the “peoples’ choice” should be comfortable in waiting for such choices to be made.

    With all due respect: So, here we go—again….?

    • Submitted by Robert Henderson on 08/22/2016 - 12:43 pm.

      Not asking to approve, just hold the hearings

      Yes, I believe that Democrats would have handled it differently, I think they would have held the hearings. That is not to say that they would have approved the nomination.

      The Senate is tasked by the constitution to advise and consent on a nomination from the President. It is their responsibility to hold the hearings. That they choose not to do so puts politics before their constitutional duties. Some of us believe that is wrong.

    • Submitted by RB Holbrook on 08/22/2016 - 01:59 pm.

      “Does anyone truly believe . . .”

      Yes. It has happened in the past. Hearings were held, even if the nominee was ultimately rejected. There was no line-in-the-sand refusal even to consider a nominee.

      This is not a case of “both sides do it, or would do it.” The Republicans have elevated obstructionism to an article of faith

      “This is one truly non-partisan characteristic of our times.” This is one true non-excuse. Apart from the fact that the current level of bad behavior belongs to one party, it resigns us to a polity of cynical sniping, leavened with a little short-term advantage..

      • Submitted by Jim Million on 08/23/2016 - 09:27 am.

        No Excuse

        Everyone needs to settle down around here, it seems. Elections do have consequences, yes?

        As for hearings: Just what we all needed, right? A great cable sideshow with no result. SCOTUS is fine for a little longer, as is the Constitutional state of the Nation. The Republicans are going down this Fall, by all accounts. I should think their detractors would be happy to wait for January.

        Honest question #1: Have you noticed any candidates campaigning on this issue this summer? I have not.

        Honest question #2: Do you believe this article is recently written, or a file piece saved for the August staff vacation breaks? Seems redundant to me, considering all the postings on this subject in prior months.

        Honest question #3: Is there a suddenly rising tide of nerves among those who may fear HRC will nominate someone else? Now, that’s an interesting point of conjecture not discussed. Will Garland survive her election?

        • Submitted by RB Holbrook on 08/23/2016 - 01:43 pm.

          Just What We All Needed

          “As for hearings: Just what we all needed, right? A great cable sideshow with no result.” The entertainment value is not really the point here. The point is the constitutional duty to pass on nominees. If nothing happens, then let the nothings own their vote and let them explain why they did that.

          Honest answer #1. No, but then, I don’t live in a state where a Senate seat is contested (I haven’t seen any spillover from Wisconsin). Does it matter? If we gauged the importance of action by what candidates campaigned on, the entire election would be about who has to bake a wedding cake for whom, and with what guns.

          Honest answer #2: I’m having a hard time telling myself why possibly could matter.

          Honest answer #3: Perhaps. It does not change the fact that President Obama is the President now, and has made a nomination to fill a vacant Supreme Court seat. Again, I cannot for the life of me see why this should matter.

          • Submitted by Jim Million on 08/24/2016 - 12:24 pm.

            A bit surprised here…

            I do find the rising recurrent tone of exasperation somewhat curious. Only here have I noticed this topic re-litigated after a Spring full of very many articles. I find no current purpose in a retrospective article that
            rests on “hearings should have been held.” So, I ask what I believe to be relevant to many MinnPostings:
            “Why here, why now?” Editors do shape the page, we know, and should also know they shape the narrative in doing so. Still believe this is a vacation filler. If so, that speaks editorially to me. That’s all. Just that.

    • Submitted by Bill Willy on 08/22/2016 - 03:42 pm.

      Politics isn’t the issue

      I may have misread the article, but it seems Justice Anderson’s main point is,

      “At best, refusal to act is a violation of the senators’ sworn oath ‘to defend and support the Constitution.’ At worst, it is an unpatriotic act.”

      Hard to disagree with that, I’d say. Not because of any political point of view but because of what it actually says in the Constitution and the way in which abiding by those things is supposed to be an important part of any elected official’s job description.

      It seems to me that whether or not any political party would do the same thing in the same circumstances isn’t the issue. In any circumstances the issue would be the same:

      Are they or are they not adhering to the directions spelled out in the Constitution?

      If they are, good. If they’re not, well, okay. Whether they call themselves a “Republican” or “Democrat” would, for me, anyway, just be one more piece of information that would go into the hopper of my American voter’s decision making machinery.

      I’d be more inclined to vote for someone who, no matter how difficult (politically, morally, etc.) did their best to honestly “defend and support the Constitution.” Not because I’m a super patriot, world historian or Constitutional expert, but because I think everything in (and about) America works and will continue to work best if the people making our laws do that.

      And that, I think, MAY have been one of Justice Anderson’s main “sub-points” when he said, “If you fail to do so, you should be held to account for your failure to do your duty.”

      Personally, I think things like impeachment and jail sentences would be a much better way of holding some of these idiots “to account,” but that would be way too messy and unworkable which, I suppose, has something fundamental to do with why the founding fathers and their Constitution gave “we the people” that next best thing we call “the vote” (and its potentially cruel result of banishment to million dollar lobbying jobs).

  4. Submitted by Hiram Foster on 08/22/2016 - 12:57 pm.

    Does anyone truly believe a Republican President submitting a nominee to an antagonistic Senate controlled by Democrats would receive different reaction and results in a similar situation and election year?

    It would depend on the nominee. Generally speaking, Democrats do not follow a policy of blanket obstructionism. It’s highly unlikely that we would deny a Republican nominee a hearing. What is currently happening in our national politics, to me, illustrates quite well the downside of such a policy.

    To me, what is happening today as compared with what happened with Justice Thomas is simply a measure of the decline of our politics. There was a time when our leaders could make difficult but necessary decisions. That time is now in the past.

  5. Submitted by Connie Sullivan on 08/22/2016 - 03:33 pm.

    So, we should all just shut up?

    Jim Million would have us all keep silent on the Garland question, saying we’d been through this discussion before and blah, blah, blah.

    What’s new is that the voters are on the cusp of an opportunity to vote out and replace two Republican senators who are stonewalling this nomination. Both Johnson, and especially Grassley from Iowa who dares to claim that he actually and actively chairs the Senate Judicial committee, are up for re-election. Let’s send our Iowa neighbor home to Iowa and replace him with a Democrat. Let’s elect Russ Feingold to the Senate from Wisconsin.

    Jim Million I think does realize that our distinguished Republican-appointed jurist here is implicitly recommending electoral action. Neither of the incumbents deserves to stay in the U.S.Senate, where they have created an obnoxious precedent for obstructionism in our judicial system.

    Contact your friends and relatives in these two neighboring states. Give money to these senators’ opponents. Go there in November and help to get out the Democratic vote. Let’s get sensible people back in the Senate!

  6. Submitted by Hiram Foster on 08/26/2016 - 08:19 am.

    Balances and checks

    We often speak of checks and balances in our constitutional system as if they were the same thing. But actually they are different. Checks are all about how each branch limits the power of the other branches. But balances address the situation where those checks don’t work out.

    Currently our checks system has resulted in gridlock, with each branch basically rendering the other two branches ineffective. But what we are seeing now is the balance system coming to the rescue. As Congress increasingly finds itself unable to do anything at all, the judicial system and the executive system become more active, restoring the balance. Recently, through a series of decisions, the judicial system has assumed a large role in the administration of health care policy in America, in some cases specifically addressing issues in areas where Congress finds itself unable to legislate. The executive branch, faced with Congressional dysfunction, now increasingly fills the power vacuum created by use of its regulatory power.

    One problem we are facing now is that congressional dysfunction is spreading to other branches of government. Congress is now unable to take up and seriously consider Supreme Court nominations, a recent and alarming development, leaving the court with eight members perhaps permanently. While this tends to free up more discretionary regulatory power for the executive, even now is searching for strategies and legal and otherwise to make the executive branch as powerless and dysfunctional as the Congressional branch.

    It’s kind of amazing to watch, and one wonders where it will all end. But it may be the case that the end is closer than it may seem.

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