May 17, 2016

Kaine On Obstruction Of President Obama’s Supreme Court Nominee: We Cannot Blind Ourselves To How Our Actions Are Perceived

WASHINGTON, D.C. –  In remarks on the Senate floor today, the 62nd anniversary of the historic Supreme Court ruling in Brown v. Board of Education, U.S. Senator Tim Kaine addressed the importance of having a fully functioning Supreme Court while sharing a sense of how the continued obstruction of President Obama’s nomination of Judge Merrick Garland to the Supreme Court has been perceived by many of his constituents across Virginia.

“I cannot say why the Senate would be so willing to break its historic practice and the commands of the Constitution to refuse consideration of a nomination made by this particular President. But I can say how it appears to many of my neighbors, fellow parishioners and constituents.  They reacted with alarm when news came that certain leaders declared, soon after President Obama was elected, that their primary goal was to assure that he would not be re-elected.   They watched with sadness as some in Congress raised questions about whether he was even born in the United States.   They saw some in Congress question his faith and his patriotism.   They observed a member of Congress shout ‘you lie’ at this President during a televised speech to the entire Congress.   They noticed, recently, as the Budget Committees of both Houses of Congress refused to even hold hearings on this President’s submitted 2017 budget, the only time a President has been treated in such a manner.   In short, they are confused and disturbed by attacks on this President’s legitimacy.  I am not referring to attacks on the President’s policies, which should always be fair game for vigorous disagreement, but instead on the very notion that it is this individual occupying the Office of the President. 

“And this latest action, the refusal to consider any Supreme Court nominee forwarded by President Obama in his final year in office, when other Presidents were granted consideration of their nominees, seems highly suspicious to them.   When that blockade is maintained even after the President forwards to the Senate a nominee of sterling credentials, the suspicion is heightened.  And when the asserted reason is the need to ‘let the people decide,’ thus suggesting that the people’s decision to elect this particular President twice is entitled to no respect, they are deeply troubled.   What can explain why this President - the nation’s first African American President - is singled out for this treatment?

“We cannot blind ourselves to how our actions are perceived.  The treatment of a Supreme Court nomination by this President that departs from the practice with previous executives, and that cannot be explained due to any feature of the particular nominee under consideration, feeds a painful perception about motivations.   And the pain is magnified when it is in connection with an appointment to the Supreme Court, whose very building proclaims in stone the cardinal notion of ‘Equal Justice under Law.’”

Kaine’s full remarks, as prepared for delivery:

Mr. President, I rise to discuss the pending vacancy on the United States Supreme Court.   And I do so with many of my colleagues on a momentous day in legal history.

May 17 is the anniversary of the Supreme Court’s decision in the case of Brown v. Board of Education.  On May 17, 1954, the Supreme Court ruled that the promise of equality—stated as paramount in the Declaration of Independence and then reaffirmed in the 14th Amendment passed in the aftermath of the Civil War—could not be denied to little schoolchildren based on their skin color.   The pivotal ruling was a watershed in our nation’s progress.  

While most know what the Brown case resolved, few remember that the Brown ruling was in serious jeopardy because of the death of a Supreme Court Justice and the deep divisions among the remaining 8 members.   It was only through the prompt filling of a judicial vacancy that the Court could come together and render a ruling in America’s best interest.   

The Brown case was originally argued in 1952 and the Court that heard the argument was hopelessly divided, so divided in fact that they asked that the case be reargued in 1953.   And then, to make matters worse, Chief Justice Fred Vinson died before the re-argument.   By many accounts, his death left the Court evenly divided over an issue of the deepest importance.   Had the vacancy persisted, there is no way of predicting whether the Supreme Court could have even resolved the case.   Imagine how different our history would have been if the Supreme Court was unable to decide on a matter of such fundamental importance.

But, President Eisenhower nominated former California Governor Earl Warren to fill the vacancy.  The Senate did its job, held a prompt hearing and confirmed his appointment.   And Chief Justice Warren then used his skill to cut through the division and convince his colleagues that the Court should speak unanimously and say that a child’s skin color should not determine which school he or she should attend.

Because the Senate did its job, the Court was able to do its job.    And all America was lifted.

I’ve listened to my colleagues and to Virginia citizens about the current Supreme Court vacancy for three months.   And I’ve come to the conclusion that the Senate is treading on very dangerous ground here.   We are communicating—possibly unintentionally—a very painful message to our public by our actions in this high profile matter.   And I fear that a precedent is about to be set that could undermine all three branches of our government.

I offer these comments because the Senate can correct the dangerous message we are sending.   And I hope that calm reflection will call us to honor the great traditions of this body.

The death of Justice Scalia on February 13 created a natural occurring vacancy on a Court that is statutorily required to have nine members.   Within hours of Justice Scalia’s death, the majority leader announced a blockade on the vacancy, declaring that no nomination by President Obama would ever receive a hearing or a vote.

This hastily announced blockade has been described as follows—the majority thinks the American people should decide on the Presidential race and that, therefore, this nomination should be for the next President to make, even if that means a Supreme Court vacancy for more than one year.  

Let’s look at the majority’s rationale.    What has the Senate done in other instances when a vacancy has occurred during the last year of a President’s term?  Well, that’s easy enough to find out.  Before Justice Scalia’s death, more than a dozen Justice have been confirmed during a presidential election year. And for the last 100 years, with the exception of nominees who withdrew, the Senate has taken action on every pending nominee to fill a vacancy on the Court.

In the past, some Senators have suggested that a vacancy occurring during the final year of a Presidential term should be entitled to less deference than other executive nominations, but that is related to whether a Senator votes yes or no.  And Senators are free to vote yes or no on nominees.  But the refusal to even consider a nominee is unprecedented.   

Beyond the precedent of previous Senate action, let’s look at Article II, Section 2 of the Constitution.   It says that the President “shall nominate” and “appoint, by and with the advice and consent of the Senate,” various officials, including Supreme Court Justices.   While all agree that the “advice and consent” provision gives the Senate the ability to affirm or reject a nominee, there is nothing in the clause suggesting that a Senate can blockade the consideration of a nominee.   And there is certainly nothing in the constitutional text to suggest that the President’s appointive powers or the Senate’s confirmation powers are somehow limited during the final year of a President’s term.

Finally, the meaning of the clause was extensively discussed as the Constitution was drafted, approved and ratified by the states.  And Alexander Hamilton’s Federalist Paper 76 also discusses the provision at length.  All understood the “advice and consent” clause as an opportunity for the Senate to determine whether a Presidential nominee for any Senate confirmable position possessed “fit character.”   That is the check against Presidential power intended by the clause.  The President, knowing that a Senate would inquire into the character of a nominee, would not just nominate people purely for partisan or personal reasons.    And “fit character” is a phrase with some subjective breadth, giving each Senator the ability to decide what it means in a given instance.   But the position that the character of the nominee doesn’t matter—evidenced by the majority’s position that there would be no meetings, no hearing and no vote, regardless of the person nominated for this vacancy—is directly contrary to the intent of the provision.

I conclude that the majority’s rationale—we should not take up the Garland nomination because the vacancy has occurred in the final year of a Presidential term—is at odds with the text of the Constitution, with the clear meaning of the text as explained during the drafting of the provision and with the clear line of Senate action in previous cases.      

So, what explains the majority’s blockade of Judge Garland?   I obviously do not know their motivations and cannot comment on them.   But I can discuss how it appears, based on my discussions with Virginians.      The current Senate blockade is variously interpreted as an attack on the nominee, on the particular President making this nomination or on the very notion of judicial independence.

We can dispense with the first possibility quickly.   The majority is not basing its blockade strategy on the character of the nominee, Judge Merrick Garland.   They announced the blockade—no meeting, no hearing, no vote—before the President even nominated Judge Garland.    They said, regardless of the character of a potential nominee, they would not entertain a nomination from this President.    Given that this is a nomination for a Supreme Court Justice and that the very essence of justice is the duty to consider each individual on his or her own merits there is a cruel irony in this position.  To refuse to consider Judge Garland on his own merits seems contrary to the very notion of justice itself.

And, now that Judge Garland has been nominated, we also know that the majority blockade is not about the character of the nominee.   Judge Garland has an esteemed record as a prosecutor, private practitioner and federal appellate judge on the DC Circuit Court of Appeals.  His judicial service alone is approaching the twenty-year mark on a court that most believe is second in importance only to the Supreme Court.   

No member of the majority has yet found any credible weakness in his background, integrity, experience, character, judicial temper or fitness for the position.   Indeed, the majority’s senior member, a respected former chair of the Judiciary Committee, has praised Judge Garland as exactly the kind of jurist who should be on the Supreme Court.  In my recent interview with Judge Garland, I came away deeply impressed with his thoughtful manner and his significant experience as a trial attorney and judge.   This is no ivory tower jurist but instead a man who understands the real life struggles of plaintiffs and defendants, lawyers and juries, legislators and citizens, who depend upon the Supreme Court to give clarity and guidance to the rules that impact the most important issues of their lives.   We should give President Obama his due in proposing a nominee with impeccable credentials. 

So, I reject the notion that the majority’s opposition is about the nominee.    In fact, a determination that Merrick Garland was not of “fit character” to even receive consideration as a Supreme Court Justice would set such a high bar for appointees that it’s hard to imagine anyone ever clearing it.

Since the Garland blockade has nothing to do with the character of the nominee, many perceive that it is instead explained by the majority’s views of this President.

Is there something about President Barack Obama that would warrant his Supreme Court nominee receiving second class treatment compared with past Senate practice?

Could it be the circumstances of the President’s election?  Some Presidents have been elected with less than a majority vote of the American public and have thus been burdened with the notion that they did not have a mandate from the American public.   But President Obama was elected in both 2008 and 2012 with overwhelming majorities in the Electoral College.   And his popular vote margins in both elections were also relatively strong in comparison with the norm in Presidential elections.    So there is nothing about the legitimacy of his elections that would warrant treating this President’s nomination differently than previous executives.

This makes extremely puzzling the majority’s claim that they want to “let the American people decide.”  The American people did decide, giving President Obama the constitutional responsibility to nominate justices to the Supreme Court from his first day in office to his last.    Some may not be happy with the decision but it’s insulting to the President and the electorate who chose him, according to longstanding and clear electoral rules, to demean the legitimacy of his election.

Could it be the unique unpopularity of the President?  One could hypothesize a situation where a President in the last year of a term in office is so unpopular that a Senate might conclude that the public is no longer supportive of the executive.   But that is not the case with President Obama.    His current popularity is actually quite strong compared with other Presidents during their final years in office.  So there is nothing about this President’s popularity with the American electorate that would warrant treating his Court nominee different than the treatment accorded to previous nominees.

So what could it be about President Obama that would warrant the blockade of his Court nominee in a manner completely different than the way the Senate has treated all other occupants of the Oval Office?  In what way is this President so different from all who came before to justify such treatment?

Obviously, I do not know the answer.   I cannot say why the Senate would be so willing to break its historic practice and the commands of the Constitution to refuse consideration of a nomination made by this particular President.

But I can say how it appears to many of my neighbors, fellow parishioners and constituents.  They reacted with alarm when news came that certain leaders declared, soon after President Obama was elected, that their primary goal was to assure that he would not be re-elected.   They watched with sadness as some in Congress raised questions about whether he was even born in the United States.   They saw some in Congress question his faith and his patriotism.   They observed a member of Congress shout “you lie” at this President during a televised speech to the entire Congress.   They noticed, recently, as the Budget Committees of both Houses of Congress refused to even hold hearings on this President’s submitted 2017 budget, the only time a President has been treated in such a manner.   In short, they are confused and disturbed by attacks on this President’s legitimacy.  I am not referring to attacks on the President’s policies, which should always be fair game for vigorous disagreement, but instead on the very notion that it is this individual occupying the Office of the President. 

And this latest action, the refusal to consider any Supreme Court nominee forwarded by President Obama in his final year in office, when other Presidents were granted consideration of their nominees, seems highly suspicious to them.   When that blockade is maintained even after the President forwards to the Senate a nominee of sterling credentials, the suspicion is heightened.  And when the asserted reason is the need to “let the people decide,” thus suggesting that the people’s decision to elect this particular President twice is entitled to no respect, they are deeply troubled.   What can explain why this President - the nation’s first African American President - is singled out for this treatment?

We cannot blind ourselves to how our actions are perceived.  The treatment of a Supreme Court nomination by this President that departs from the practice with previous executives, and that cannot be explained due to any feature of the particular nominee under consideration, feeds a painful perception about motivations.   And the pain is magnified when it is in connection with an appointment to the Supreme Court, whose very building proclaims in stone the cardinal notion of “Equal Justice under Law.”

There is a third interpretation of the Garland blockade that is also troubling.    Some see the blockade as a simple attempt to slant the Court.   The death of Justice Scalia creates concern among those who fear a natural transition of the Court.  And so there is an effort to stop that natural and lawful transition.

The blockade on filling a naturally occurring court vacancy is harmful to the independent Article III branch.   Even in the three months since Justice Scalia’s death, the Court’s rulings have shown the challenge of an eight-member Court.    On four occasions, the Court has been unable to render a clear decision in a case of great importance.   And since the majority’s blockade, if successful, will likely maintain an artificial vacancy until the spring of 2017, it is likely to happen on other cases as well.  And so lower courts and all persons whose rights and liberties are subject to rulings by the Court are deprived of the clarity on federal issues that the Court was designed to provide.

But it’s more than just a hobbling of the Court’s ability to decide discrete cases.   Seventy years ago, when Winston Churchill spoke at Westminster College about the descent of an Iron Curtain across Europe, he defined the differences between free societies and those driven by tyranny.   Key to his description of free societies was an independent judiciary.  It is an independent judiciary that serves as a bulwark against executive or legislative power grabs, protecting the liberties of the individual from an over-reaching executive or from a majoritarian legislature unconcerned with the rights of minorities.    And this independence has been a great hallmark of American democracy.

The blockade of the Garland nomination undermines that independence.  The Judiciary Act of 1869 set the composition of the Court at nine Justices with life tenure, and that statute has remained in force for nearly 150 years.   When President Franklin Roosevelt didn’t like certain rulings of the Supreme Court in the 1930’s, he tried to expand the Court and elbow out older Justices by proposing a forced retirement age.   All understood FDR’s actions as an attack on the independence of the judicial branch.  Congressional leaders of both parties rose up to stop it.  

I believe that the current blockade is the legislative equivalent of the Roosevelt attack.   Refusing to consider any Obama nomination in order to artificially maintain a court vacancy for more than a year is a direct attack on the independence of the judiciary.   And whether the independent judiciary is attacked by the executive or legislative branches, we need to be equally diligent in repelling that attack.

American diplomats work every day trying to convince other societies of the virtues of the rule of law and an independent judiciary.    But the current blockade, unless corrected, suggests that we do not practice what we preach.  By refusing to fill a naturally occurring vacancy, we send the message that the rule of law and an independent judiciary are ultimately secondary to having a more compliant judiciary, even if we have to weaken it to attain what we want.

I once lived in a country with a military dictatorship that held this view of the judiciary.   The judiciary was not prized for its independence but instead for its slavish obedience to the very few in control of society.   By refusing to fill a Supreme Court vacancy because a partial and weakened Court is deemed more acceptable than a full and lawfully constituted Court, we move away from our tradition of judicial independence to become more like legal systems we rightly abhor.

In conclusion, I harken back to 1954.   A matter of fundamental importance to our nation was before the Supreme Court.   The death of a Justice left an 8-member Court that had already shown that it was deeply divided and likely unable to reach a ruling.   But the Senate did its job and filled the Court, and the Court could then render a ruling that changed the course of American history for the better.

We should learn from this history and do our job.  Persisting with the current blockade is deeply dangerous.  The refusal to carry out the commands of the Constitution and the Judiciary Act of 1869, to abide by the Senate’s precedents, to fill a naturally occurring Supreme Court vacancy, to offer the “advice and consent” that is part of a Senator’s job description and to entertain a well-qualified nominee even for a hearing, much less a vote, will not be viewed favorably in the bright and objective light that history will shine on our actions.

We can fix this.   If the Judiciary Committee will hold a hearing, cast a vote, report Judge Garland to the floor and then ensure that the Senate debates the nomination and holds a floor vote, we uphold our institutional responsibility.  Judge Garland might be confirmed or rejected.  But in taking action—rather than mounting an unprecedented blockade—we preserve the ability of each Senator to make the judgment about whether Judge Garland possesses the “fit character” necessary for the position.   We act in accord with the Constitution and the Judiciary Act of 1869.  We follow the traditional practices of the Senate, practices that have served us well as the Brown v. Board case shows.   And we cure the painful and dangerous message that is communicated by the current blockade strategy.

###

KAINE SOBRE LA OBSTRUCCION DEL NOMINADO DEL PRESIDENTE OBAMA A LA SUPREMA CORTE: NO PODEMOS IGNORAR COMO SON PERCIBIDAS NUESTRAS ACCIONES

WASHINGTON, D.C. – Hoy, durante un discurso en el pleno del Senado conmemorando el 62º aniversario del fallo histórico Brown v. Board of Education de la Suprema Corte, el Senador Tim Kaine habló sobre la importancia de tener una Suprema Corte que funcione al compartir cómo los residentes de Virginia perciben la continua obstrucción de la nominación del juez Merrick Garland a la Suprema Corte.

“No sé por qué el Senado está dispuesto a abandonar sus costumbres y los requisitos de la Constitución para negarle consideración a la nominación hecha por este Presidente en particular. Pero sé cómo lo perciben mis vecinos, mis parroquianos y mis electores. Ellos se preocuparon cuando ciertos líderes anunciaron, poco después de que el Presidente Obama fuera elegido, que su meta principal era asegurar que él Presidente no fuera re-elegido. Observaron tristemente como congresistas cuestionaban su fe y su patriotismo. Ellos vieron como un representante le gritó “mientes” a este Presidente durante un discurso televisado al Congreso. Ellos se dieron cuenta, recientemente, que los Comités del Presupuesto de ambas cámaras del Congreso se negaron a siquiera tener audiencias sobre el presupuesto propuesto por el Presidente para el año fiscal 2017, la única vez que un Presidente ha sido tratado de esta manera. En resumen, están confundidos y perturbados por los ataques a la legitimidad de este Presidente. No me refiero a los ataques sobre las políticas del Presidente, las cuales siempre deben ser sometidas a un debate vigoroso, sino a la noción de que es éste el individuo ocupando la oficina del Presidente.

“Y esta última acción, negarse a considerar a un nominado a la Suprema Corte del Presidente Obama en el último año de su mandato, cuando los nominados de otros Presidentes han sido considerados, les parece muy sospechoso. Cuando este bloqueo es mantenido, aún después de que el Presidente ha propuesto a un candidato extremamente cualificado, intensifica la sospecha. Y cuando la razón es que ‘los votantes deben decidir’, sugiere que la decisión popular de elegir a este Presidente dos veces no merece ser respetada y están muy preocupados. ¿Qué puede explicar por qué este Presidente – el primer Presidente afroamericano – recibe este trato singular?

“No podemos ignorar cómo son percibidas nuestras acciones. Un trato al nominado a la Suprema Corte de este Presidente que sea diferente al precedente establecido por otros ejecutivos y que no tenga explicación basada en alguna característica de este candidato, sustenta una percepción dolorosa sobre los motivos del Senado. Y este dolor es amplificado cuando es vinculado a una nominación a la Suprema Corte, cuyo edificio proclama en piedra la noción cardenal de ‘Justicia e igualdad bajo la ley.’”

El discurso en inglés del Senador Kaine tal como fue preparado:

Mr. President, I rise to discuss the pending vacancy on the United States Supreme Court.   And I do so with many of my colleagues on a momentous day in legal history.

May 17 is the anniversary of the Supreme Court’s decision in the case of Brown v. Board of Education.  On May 17, 1954, the Supreme Court ruled that the promise of equality—stated as paramount in the Declaration of Independence and then reaffirmed in the 14th Amendment passed in the aftermath of the Civil War—could not be denied to little schoolchildren based on their skin color.   The pivotal ruling was a watershed in our nation’s progress.  

While most know what the Brown case resolved, few remember that the Brown ruling was in serious jeopardy because of the death of a Supreme Court Justice and the deep divisions among the remaining 8 members.   It was only through the prompt filling of a judicial vacancy that the Court could come together and render a ruling in America’s best interest.   

The Brown case was originally argued in 1952 and the Court that heard the argument was hopelessly divided, so divided in fact that they asked that the case be reargued in 1953.   And then, to make matters worse, Chief Justice Fred Vinson died before the re-argument.   By many accounts, his death left the Court evenly divided over an issue of the deepest importance.   Had the vacancy persisted, there is no way of predicting whether the Supreme Court could have even resolved the case.   Imagine how different our history would have been if the Supreme Court was unable to decide on a matter of such fundamental importance.

But, President Eisenhower nominated former California Governor Earl Warren to fill the vacancy.  The Senate did its job, held a prompt hearing and confirmed his appointment.   And Chief Justice Warren then used his skill to cut through the division and convince his colleagues that the Court should speak unanimously and say that a child’s skin color should not determine which school he or she should attend.

Because the Senate did its job, the Court was able to do its job.    And all America was lifted.

I’ve listened to my colleagues and to Virginia citizens about the current Supreme Court vacancy for three months.   And I’ve come to the conclusion that the Senate is treading on very dangerous ground here.   We are communicating—possibly unintentionally—a very painful message to our public by our actions in this high profile matter.   And I fear that a precedent is about to be set that could undermine all three branches of our government.

I offer these comments because the Senate can correct the dangerous message we are sending.   And I hope that calm reflection will call us to honor the great traditions of this body.

The death of Justice Scalia on February 13 created a natural occurring vacancy on a Court that is statutorily required to have nine members.   Within hours of Justice Scalia’s death, the majority leader announced a blockade on the vacancy, declaring that no nomination by President Obama would ever receive a hearing or a vote.

This hastily announced blockade has been described as follows—the majority thinks the American people should decide on the Presidential race and that, therefore, this nomination should be for the next President to make, even if that means a Supreme Court vacancy for more than one year.  

Let’s look at the majority’s rationale.    What has the Senate done in other instances when a vacancy has occurred during the last year of a President’s term?  Well, that’s easy enough to find out.  Before Justice Scalia’s death, more than a dozen Justice have been confirmed during a presidential election year. And for the last 100 years, with the exception of nominees who withdrew, the Senate has taken action on every pending nominee to fill a vacancy on the Court.

In the past, some Senators have suggested that a vacancy occurring during the final year of a Presidential term should be entitled to less deference than other executive nominations, but that is related to whether a Senator votes yes or no.  And Senators are free to vote yes or no on nominees.  But the refusal to even consider a nominee is unprecedented.   

Beyond the precedent of previous Senate action, let’s look at Article II, Section 2 of the Constitution.   It says that the President “shall nominate” and “appoint, by and with the advice and consent of the Senate,” various officials, including Supreme Court Justices.   While all agree that the “advice and consent” provision gives the Senate the ability to affirm or reject a nominee, there is nothing in the clause suggesting that a Senate can blockade the consideration of a nominee.   And there is certainly nothing in the constitutional text to suggest that the President’s appointive powers or the Senate’s confirmation powers are somehow limited during the final year of a President’s term.

Finally, the meaning of the clause was extensively discussed as the Constitution was drafted, approved and ratified by the states.  And Alexander Hamilton’s Federalist Paper 76 also discusses the provision at length.  All understood the “advice and consent” clause as an opportunity for the Senate to determine whether a Presidential nominee for any Senate confirmable position possessed “fit character.”   That is the check against Presidential power intended by the clause.  The President, knowing that a Senate would inquire into the character of a nominee, would not just nominate people purely for partisan or personal reasons.    And “fit character” is a phrase with some subjective breadth, giving each Senator the ability to decide what it means in a given instance.   But the position that the character of the nominee doesn’t matter—evidenced by the majority’s position that there would be no meetings, no hearing and no vote, regardless of the person nominated for this vacancy—is directly contrary to the intent of the provision.

I conclude that the majority’s rationale—we should not take up the Garland nomination because the vacancy has occurred in the final year of a Presidential term—is at odds with the text of the Constitution, with the clear meaning of the text as explained during the drafting of the provision and with the clear line of Senate action in previous cases.      

So, what explains the majority’s blockade of Judge Garland?   I obviously do not know their motivations and cannot comment on them.   But I can discuss how it appears, based on my discussions with Virginians.      The current Senate blockade is variously interpreted as an attack on the nominee, on the particular President making this nomination or on the very notion of judicial independence.

We can dispense with the first possibility quickly.   The majority is not basing its blockade strategy on the character of the nominee, Judge Merrick Garland.   They announced the blockade—no meeting, no hearing, no vote—before the President even nominated Judge Garland.    They said, regardless of the character of a potential nominee, they would not entertain a nomination from this President.    Given that this is a nomination for a Supreme Court Justice and that the very essence of justice is the duty to consider each individual on his or her own merits there is a cruel irony in this position.  To refuse to consider Judge Garland on his own merits seems contrary to the very notion of justice itself.

And, now that Judge Garland has been nominated, we also know that the majority blockade is not about the character of the nominee.   Judge Garland has an esteemed record as a prosecutor, private practitioner and federal appellate judge on the DC Circuit Court of Appeals.  His judicial service alone is approaching the twenty-year mark on a court that most believe is second in importance only to the Supreme Court.   

No member of the majority has yet found any credible weakness in his background, integrity, experience, character, judicial temper or fitness for the position.   Indeed, the majority’s senior member, a respected former chair of the Judiciary Committee, has praised Judge Garland as exactly the kind of jurist who should be on the Supreme Court.  In my recent interview with Judge Garland, I came away deeply impressed with his thoughtful manner and his significant experience as a trial attorney and judge.   This is no ivory tower jurist but instead a man who understands the real life struggles of plaintiffs and defendants, lawyers and juries, legislators and citizens, who depend upon the Supreme Court to give clarity and guidance to the rules that impact the most important issues of their lives.   We should give President Obama his due in proposing a nominee with impeccable credentials. 

So, I reject the notion that the majority’s opposition is about the nominee.    In fact, a determination that Merrick Garland was not of “fit character” to even receive consideration as a Supreme Court Justice would set such a high bar for appointees that it’s hard to imagine anyone ever clearing it.

Since the Garland blockade has nothing to do with the character of the nominee, many perceive that it is instead explained by the majority’s views of this President.

Is there something about President Barack Obama that would warrant his Supreme Court nominee receiving second class treatment compared with past Senate practice?

Could it be the circumstances of the President’s election?  Some Presidents have been elected with less than a majority vote of the American public and have thus been burdened with the notion that they did not have a mandate from the American public.   But President Obama was elected in both 2008 and 2012 with overwhelming majorities in the Electoral College.   And his popular vote margins in both elections were also relatively strong in comparison with the norm in Presidential elections.    So there is nothing about the legitimacy of his elections that would warrant treating this President’s nomination differently than previous executives.

This makes extremely puzzling the majority’s claim that they want to “let the American people decide.”  The American people did decide, giving President Obama the constitutional responsibility to nominate justices to the Supreme Court from his first day in office to his last.    Some may not be happy with the decision but it’s insulting to the President and the electorate who chose him, according to longstanding and clear electoral rules, to demean the legitimacy of his election.

Could it be the unique unpopularity of the President?  One could hypothesize a situation where a President in the last year of a term in office is so unpopular that a Senate might conclude that the public is no longer supportive of the executive.   But that is not the case with President Obama.    His current popularity is actually quite strong compared with other Presidents during their final years in office.  So there is nothing about this President’s popularity with the American electorate that would warrant treating his Court nominee different than the treatment accorded to previous nominees.

So what could it be about President Obama that would warrant the blockade of his Court nominee in a manner completely different than the way the Senate has treated all other occupants of the Oval Office?  In what way is this President so different from all who came before to justify such treatment?

Obviously, I do not know the answer.   I cannot say why the Senate would be so willing to break its historic practice and the commands of the Constitution to refuse consideration of a nomination made by this particular President.

But I can say how it appears to many of my neighbors, fellow parishioners and constituents.  They reacted with alarm when news came that certain leaders declared, soon after President Obama was elected, that their primary goal was to assure that he would not be re-elected.   They watched with sadness as some in Congress raised questions about whether he was even born in the United States.   They saw some in Congress question his faith and his patriotism.   They observed a member of Congress shout “you lie” at this President during a televised speech to the entire Congress.   They noticed, recently, as the Budget Committees of both Houses of Congress refused to even hold hearings on this President’s submitted 2017 budget, the only time a President has been treated in such a manner.   In short, they are confused and disturbed by attacks on this President’s legitimacy.  I am not referring to attacks on the President’s policies, which should always be fair game for vigorous disagreement, but instead on the very notion that it is this individual occupying the Office of the President. 

And this latest action, the refusal to consider any Supreme Court nominee forwarded by President Obama in his final year in office, when other Presidents were granted consideration of their nominees, seems highly suspicious to them.   When that blockade is maintained even after the President forwards to the Senate a nominee of sterling credentials, the suspicion is heightened.  And when the asserted reason is the need to “let the people decide,” thus suggesting that the people’s decision to elect this particular President twice is entitled to no respect, they are deeply troubled.   What can explain why this President - the nation’s first African American President - is singled out for this treatment?

We cannot blind ourselves to how our actions are perceived.  The treatment of a Supreme Court nomination by this President that departs from the practice with previous executives, and that cannot be explained due to any feature of the particular nominee under consideration, feeds a painful perception about motivations.   And the pain is magnified when it is in connection with an appointment to the Supreme Court, whose very building proclaims in stone the cardinal notion of “Equal Justice under Law.”

There is a third interpretation of the Garland blockade that is also troubling.    Some see the blockade as a simple attempt to slant the Court.   The death of Justice Scalia creates concern among those who fear a natural transition of the Court.  And so there is an effort to stop that natural and lawful transition.

The blockade on filling a naturally occurring court vacancy is harmful to the independent Article III branch.   Even in the three months since Justice Scalia’s death, the Court’s rulings have shown the challenge of an eight-member Court.    On four occasions, the Court has been unable to render a clear decision in a case of great importance.   And since the majority’s blockade, if successful, will likely maintain an artificial vacancy until the spring of 2017, it is likely to happen on other cases as well.  And so lower courts and all persons whose rights and liberties are subject to rulings by the Court are deprived of the clarity on federal issues that the Court was designed to provide.

But it’s more than just a hobbling of the Court’s ability to decide discrete cases.   Seventy years ago, when Winston Churchill spoke at Westminster College about the descent of an Iron Curtain across Europe, he defined the differences between free societies and those driven by tyranny.   Key to his description of free societies was an independent judiciary.  It is an independent judiciary that serves as a bulwark against executive or legislative power grabs, protecting the liberties of the individual from an over-reaching executive or from a majoritarian legislature unconcerned with the rights of minorities.    And this independence has been a great hallmark of American democracy.

The blockade of the Garland nomination undermines that independence.  The Judiciary Act of 1869 set the composition of the Court at nine Justices with life tenure, and that statute has remained in force for nearly 150 years.   When President Franklin Roosevelt didn’t like certain rulings of the Supreme Court in the 1930’s, he tried to expand the Court and elbow out older Justices by proposing a forced retirement age.   All understood FDR’s actions as an attack on the independence of the judicial branch.  Congressional leaders of both parties rose up to stop it.  

I believe that the current blockade is the legislative equivalent of the Roosevelt attack.   Refusing to consider any Obama nomination in order to artificially maintain a court vacancy for more than a year is a direct attack on the independence of the judiciary.   And whether the independent judiciary is attacked by the executive or legislative branches, we need to be equally diligent in repelling that attack.

American diplomats work every day trying to convince other societies of the virtues of the rule of law and an independent judiciary.    But the current blockade, unless corrected, suggests that we do not practice what we preach.  By refusing to fill a naturally occurring vacancy, we send the message that the rule of law and an independent judiciary are ultimately secondary to having a more compliant judiciary, even if we have to weaken it to attain what we want.

I once lived in a country with a military dictatorship that held this view of the judiciary.   The judiciary was not prized for its independence but instead for its slavish obedience to the very few in control of society.   By refusing to fill a Supreme Court vacancy because a partial and weakened Court is deemed more acceptable than a full and lawfully constituted Court, we move away from our tradition of judicial independence to become more like legal systems we rightly abhor.

In conclusion, I harken back to 1954.   A matter of fundamental importance to our nation was before the Supreme Court.   The death of a Justice left an 8-member Court that had already shown that it was deeply divided and likely unable to reach a ruling.   But the Senate did its job and filled the Court, and the Court could then render a ruling that changed the course of American history for the better.

We should learn from this history and do our job.  Persisting with the current blockade is deeply dangerous.  The refusal to carry out the commands of the Constitution and the Judiciary Act of 1869, to abide by the Senate’s precedents, to fill a naturally occurring Supreme Court vacancy, to offer the “advice and consent” that is part of a Senator’s job description and to entertain a well-qualified nominee even for a hearing, much less a vote, will not be viewed favorably in the bright and objective light that history will shine on our actions.

We can fix this.   If the Judiciary Committee will hold a hearing, cast a vote, report Judge Garland to the floor and then ensure that the Senate debates the nomination and holds a floor vote, we uphold our institutional responsibility.  Judge Garland might be confirmed or rejected.  But in taking action—rather than mounting an unprecedented blockade—we preserve the ability of each Senator to make the judgment about whether Judge Garland possesses the “fit character” necessary for the position.   We act in accord with the Constitution and the Judiciary Act of 1869.  We follow the traditional practices of the Senate, practices that have served us well as the Brown v. Board case shows.   And we cure the painful and dangerous message that is communicated by the current blockade strategy.

###