With November 8th rapidly approaching there are several important issues that are on voters’ minds as they decide for whom they will cast their ballots. These issues include gun laws, abortion rights, approaches to immigration, national security, etc. However, one issue that is on voters’ minds more than during any other presidential election year is the United States Supreme Court.
With November 8This is because Antonin Scalia, a conservative Associate Justice of the Supreme Court, died suddenly in February of this year. His death resulted in a bench of four liberal justices and four conservative justices, creating problems when deciding cases. Having an even number of justices on the bench allows for there to be ties—especially when there are an equal number of liberal and conservative justices. In the case of a tie, the decision of the lower court, usually a state supreme court, is upheld.
A month after Justice Scalia’s death, President Obama named a nominee to fill the empty seat: Merrick Garland, the chief justice of the United States Court of Appeals for the District of Columbia Circuit. President Obama chose Garland for the U.S. Supreme Court, hoping that the moderate-liberal justice would have bipartisan support and would be able to be confirmed by a Republican-controlled Congress. However, that is not what has happened.
There are several steps involved in confirming a Supreme Court justice. First, the president nominates a candidate whom they hope will serve on the bench. Next, the Senate Judiciary Committee vets the nominee to learn more about the candidate’s background. After vetting him or her, the Senate Judiciary Committee holds a hearing to ensure that the candidate is qualified for the position. Following the hearing, the committee votes whether or not to send the nominee to the Senate to be confirmed. However, even if the committee rejects the candidate, he or she is still sent to the full Senate, although with the committee’s disapproval.
Once the candidate makes it to the full Senate, there is a debate on the Senate floor led by the chair of the Senate Judiciary Committee. Following the debate, and assuming that there is no filibuster, there is a vote on whether or not to confirm the nominee. A majority of fifty-one votes is all that is needed to confirm the president’s nominee for the Supreme Court.
However, in the case of Merrick Garland, the Senate Judiciary Committee has refused to hold an initial hearing for him, and many Republican members of Congress have even declined to meet with him in person.
The Republican Senate has refused to act on President Obama’s nomination, because adding a liberal justice has enormous ramifications for the Supreme Court. With Justice Scalia, the Supreme Court had five conservative justices to only four liberal justices, allowing for conservative rulings. If the next justice on the bench is liberal, the balance of the Supreme Court will shift, allowing for more liberal decisions to be made. This shift is especially significant as the Supreme Court continues to hear cases regarding hot-button issues including transgender rights, abortion clinic requirements and immigration laws. Since it is an election year, the Republican Party has largely decided to wait until after the election to deal with a new Supreme Court justice.
Technically, the Republican Party is allowed to do this, because the Constitution does not require the Senate to act on a president’s nomination. However, the Democratic Party has repeatedly attacked the opposition for their way of dealing with the nomination. In an interview with BuzzFeed News in May, President Obama criticized Congress for not holding a hearing for Garland. “My hope is the closer we get to the summer and the more pressure that viewers are putting on senators just to do their job[s], and to give the guy a hearing, give him a vote, then more and more Republican senators will recognize that the position they’re taking is not tenable,” he said.
President Obama’s nomination stays active until Congress ends. That means that until the Senate adjourns at a to-be-determined date in December, Merrick Garland is still the president’s nominee for the Supreme Court. However, after they adjourn, and before the new Congress convenes at noon on January 3rd, Garland’s nomination will be annulled.
There are many different paths that this can take once that happens. After January 3rd, President Obama can do one of three things: he can re-nominate Garland, nominate a different person, or do nothing at all and leave the vacancy for the next president to fill. If President Obama decides to re-nominate Garland or choose a new candidate, the nomination is valid even after Inauguration Day on January 20th. That means that the next president has a choice of either leaving Garland as the nominee and doubling down on efforts to get him confirmed, or to withdraw the nomination and choose a new nominee.
Donald Trump, just days before the first presidential debate in September, released a list of ten potential candidates that he would nominate to the Supreme Court if elected president. The list included judges, as well as Republican Senator Mike Lee of Utah, all of whom are considered to be staunchly conservative. If elected, he will undoubtedly withdraw President Obama’s nomination and use his own list to nominate a new candidate.
Hillary Clinton has more options if elected president. She can withdraw President Obama’s nomination and choose someone more liberal to nominate, although she is unlikely to do so because if the Senate is still Republican she will have trouble getting her nominee confirmed. In recent days, three Republican Senators—Sens. Ted Cruz, John McCain, and Mike Lee—have already vowed that they will not confirm anyone that Hillary Clinton nominates. Alternatively, she can keep Garland as the nominee and work to get him confirmed once she is president. Or, Clinton can push the lame duck Congress to confirm Garland in January, before she takes office.
The bottom line is that the Supreme Court is an issue that has a lot of significance this election year. It is not yet clear what will happen with the vacancy, how that will affect future court decisions, and who will end up filling that seat. What is clear is that whoever the next president is will have a real impact on the future of the Supreme Court.