Supreme Court Deadlock Bad For Democracy

A Deadlocked Supreme Court Stands as Greatest Threat to Rights of Minorities

By Kristen Clarke

Judicial diversity is one of the pillars of a just society. The reason is simple: justice is better served when our courts are presented with diverse viewpoints. Varied voices and perspectives help enhance the work of courts. And more diverse courts helps ensure the public that our judicial system is committed to equal justice under law for all.
Following President Barack Obama’s nomination of Chief Judge Merrick Garland to the Supreme Court last week, some commentators have expressed disappointment that the nominee was not a person of color. It certainly would have been bold for President Obama to have used this opportunity to expand diversity on the highest Court in the land. But the fact that he chose not to do so at this moment does not mean that we should ignore the president’s track record on judicial diversity, nor that we should prematurely stand opposed to Garland’s nomination.
Due to President Obama’s strides on judicial diversity, the federal judiciary is currently more diverse than ever before. The president has nominated more than 70 African American judges, including 31 African American women — twice the number nominated by President Bill Clinton and three times the number nominated by President George W. Bush. Unfortunately, a number of these nominations have stalled in the Senate due to inaction and obstruction. In total, President Obama has nominated more than 130 minority judges, including more than twenty circuit court judges. He has also given the nation its first Latina on the Supreme Court and in 2014, Diane Joyce Humetewa became the very first Native American woman to serve on the federal bench. Overall, President Obama has advanced diversity of the federal judiciary more than any other president in history.
Frustration with the President’s choice is understandable given the names that had been circulated as potential nominees including Attorney General Loretta Lynch, California State Attorney General Kamala Harris, and federal Circuit Court Judges Paul Watford and Sri Srinivasan. But this short list forever alters the dynamics about and expectations for future short lists that are diverse in every respect in connection with other vacancies that arise in the future.
Nonetheless, if we care about the interests of African Americans and communities of color, it is time for us to press the Senate to do its job and give Judge Garland a hearing and a vote. A hearing will give the American people an opportunity to understand Garland’s track record during his more than 18 years as a federal appellate court judge. Will he be faithful to the Constitution? Will he fairly evaluate important civil rights cases that come before him? Will he ensure that the rights of minorities are protected? At the Lawyers’ Committee, we are currently conducting a review of Garland’s record to help inform the public’s understanding of the kind of jurist he will be.
But, every day that the Court stands at 8 members poses a threat to our democracy and a threat to the rights of minorities. Many of the most significant pending cases during the current term involve controversial issues which might have been decided on a 5–4 basis, but could now result in a 4–4 tie or be selected for reargument at some future date. Ties would leave controversial lower court decisions in place, but the state of the law uncertain. Reargument could result in delays well into the 2017 term. At stake now are pending cases involving race conscious admissions policies in higher education, the constitutionality of restrictions on abortion providers, and the validity of executive actions affecting millions of undocumented immigrants, among others. The vacancy could also affect future applications to the Court for emergency stays involving imminent executions of persons on death row.
As the head of a civil rights organization that has historically been involved and invested in many of the major Supreme Court cases that impact the rights of minorities, I believe it is critical that we focus on filling the vacant seat. A fully staffed Court is needed for the Court to operate effectively. President Obama has fulfilled his constitutional duty by putting forward a nominee. And now it’s time for the Senate to fulfill its constitutional obligation pursuant to Article II, Section II, Clause 2 of the Constitution, and give that nominee a hearing and a vote.

Kristen Clarke is the new president and executive director of the Lawyers’ Committee For Civil Rights Under Law, a national civil rights organization founded in 1963. Follow her @votingrights #WeNeedNine #DoYourJob