Senate Republicans’ Shameful Start to the Supreme Court Term — A Sharp Contrast to 2005

By Judith E. Schaeffer

The Supreme Court will start its new Term next week with only eight Justices on the bench, just as short-handed as it’s been since last February, when Justice Antonin Scalia passed away in the middle of the Court’s last Term.

And yet in all this time, the vacancy on the Court has not been filled, despite the fact that President Obama on March 16 nominated Merrick Garland to fill that vacancy.

Garland is the exceedingly well-qualified and highly regarded Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. But his nomination has languished in the Senate because Senate Majority Leader Mitch McConnell (R-KY) and his Republican colleagues have made it clear that they will not consider any Obama nominee to the Court, ensuring that the Court will begin its new Term just as it ended its last one — unable to fully carry out its critical responsibilities as our Nation’s highest court.

The last time the Supreme Court had a September vacancy heading into the start of a new October Term was in 2005, when George W. Bush was President and Republicans controlled the Senate, as they do now. It’s instructive to examine how that played out, given Republican Senators’ current refusal to do their jobs.

On July 1, 2005, Justice Sandra Day O’Connor announced that she was going to retire, effective upon the confirmation of her successor. On July 29, President Bush nominated John Roberts (like Merrick Garland, a judge on the D.C. Circuit) to succeed Justice O’Connor.

But when Chief Justice William Rehnquist died on September 3, President Bush quickly withdrew Roberts’s nomination to be an Associate Justice and, on September 6, nominated Roberts to be the Chief Justice. The Republican-controlled Senate Judiciary Committee held confirmation hearings for Roberts from September 12–15. Roberts was voted out of Committee on September 25, and swiftly confirmed by the Senate on September 29, 2005, a mere 62 days from his nomination in July.

And just like that, the Supreme Court’s new Term started on October 3, 2005, with the Court having its full complement of nine Justices. Not exactly what’s going to happen this October.

Senate Republicans kept on going in 2005. Having filled the Rehnquist seat, President Bush on November 10, 2005 nominated Samuel Alito (also a federal appellate judge) to succeed Justice O’Connor. Unlike the nomination of Judge Garland, however, Judge Alito’s nomination was met with fierce opposition stemming from his ideological record (as had Roberts’s). Nonetheless, the Senate Judiciary Committee promptly held confirmation hearings for Alito from January 9–13, 2006. Alito was voted out of Committee on January 24, and confirmed by the Senate on January 31, 2006, 82 days after he was nominated.

In sharp contrast, it’s been nearly 200 days since President Obama nominated Chief Judge Garland to the Supreme Court, with no end to the blockade of his nomination in sight. Until now, the longest the Senate has ever taken to vote on a Supreme Court nominee after one had been named was 125 days. Months after shattering that record, the Senate hasn’t even given Merrick Garland a hearing, let alone a vote. And while Senator McConnell and other Republican Senators have tried to hide their unprecedented obstruction behind the excuse that this is a presidential election year, that just won’t wash. Supreme Court Justices have been confirmed in such years, including Ronald Reagan-nominee Anthony Kennedy in 1988 — when Democrats controlled the Senate.

Looking back at 2005, it’s pretty clear that Senate Republicans can promptly fill a vacancy on the Court (and deal with an announced retirement) when they want to. Their partisan inaction now is nothing short of shameful. And the Court, the country, and Merrick Garland are paying the price.

Judith E. Schaeffer is Vice President and Chief Operating Officer of Constitutional Accountability Center