“…he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court…” — Article II, Section II of the United States Constitution

Debunking Supreme Court Myths

As the White House and its paid political activists gear up their latest propaganda campaign, it’s important to separate fact from fiction regarding the Supreme Court vacancy. Below are some of the most pervasive myths and the truth about the Senate’s role and constitutional responsibilities.

MYTH: “As the duly elected President of the United States, President Obama has the constitutional right to appoint judges.

TRUTH: There are three steps for a new Supreme Court justice to be seated:

1. “[The president] shall nominate [a prospective justice]…”
2. “…by and with the advice and consent of the Senate…”
3. “…[The president] shall appoint…Judges of the supreme Court…”

A majority of United States Senators do not support moving forward with the confirmation process. The president does not have a right to appoint justices, merely to nominate them, just as he has done. The ability to appoint can only follow the advice and consent of the Senate, which has not been provided. As scholars have roundly pointed out, the Senate decides how it consents or withholds its consent.

MYTH: “The United States Senate isn’t doing its job.

TRUTH: A recent Washington Post analysis gave this myth “three Pinocchios,” stating: “Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination.”

Both President Obama and the United States Senate are acting within the confines of their duties, according to Article II, Section II of the Constitution. One may agree or disagree with the president’s nomination for any number of reasons or one may agree or disagree with the Senate’s decision not to proceed on the nomination; however, neither the executive nor the legislative branch has neglected to do their job or fulfill any legal obligation. In fact, they both have done exactly what is constitutionally required.

Moreover, the Senate is hard at work, proving itself to be the most productive Congress in years.

As Chairman of the Judiciary Committee, Senator Grassley has led significant bipartisan efforts on important legislation. There have been 27 bills approved by the Judiciary Committee under Grassley’s leadership. All of the bills have been approved with bipartisan support.

MYTH: “The delay in filling the Supreme Court vacancy is causing dysfunction in the courts and the need for a replacement justice is urgent.

TRUTH: The Supreme Court is equipped to function with eight justices for a relatively brief time, and has historically had differing numbers of judges (anywhere from six to ten), a number that is set by Congress. Cases can be re-argued, rescheduled and resolved in the future, so having an even number of judges temporarily will not prove problematic, as both Justice Breyer and Justice Alito have stated. Senator Grassley recently rebutted hyperbolic claims to the contrary.

MYTH: “The Senate’s decision to not move forward on the Supreme Court nomination is all about politics.

TRUTH: In 2012, the American people re-elected Barack Obama as President of the United States. In 2014, the American people elected their respective members of Congress, handing over control of the United States Senate to Republicans. The appointment of judicial nominations requires the approval of both the executive branch and the legislative branch. With the two co-equal branches of government politically divided and the country experiencing a hotly contested presidential election, a confirmation process would only serve to heighten partisan differences regarding the vacancy. Instead of unnecessarily spending time litigating an issue on which the two branches of governments disagree, Congress should focus on issues where common ground can be found.

This vacancy could affect the direction of the Supreme Court for generations to come. The question for Americans is if the Supreme Court should be a super legislature, deciding cases on the whims and feelings of a justice on any particular day, or if the Supreme Court should decide cases based on the Constitution and the rule of law. Indeed, there are many outside groups and partisan organizations that know this and are attempting to politicize the vacancy to serve their narrow political purposes.

This election year should be used as an opportunity to let the people have a voice on whose vision to fill this vacancy they support, and leave it to the next president to nominate a replacement.

MYTH: “There is nothing unique about this vacancy, except the Senate’s decision on how to proceed.

TRUTH: Nominating and confirming a Supreme Court justice in a presidential election year, particularly under divided government, would be unprecedented in modern American history.

It has been 128 years since a Supreme Court justice was nominated and confirmed in a presidential election year while the president’s opposing party controlled the Senate (1888, President Grover Cleveland, Justice Melville Fuller).

Opposition to election year confirmation battles is not unique to Republicans either. In a recent op-ed for the Des Moines Register, Senator Grassley noted:

For example, then-Senate Judiciary Committee Chairman Joe Biden, lectured in 1992 that “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” In 2005, than-Senate Majority Leader Harry Reid, a Democrat, stated, “Nowhere in that document [the Constitution] does it say the Senate has a duty to give presidential nominees a vote.” In 2007, a year and a half before the end of George W. Bush’s tenure as president, Sen. Chuck Schumer, heir apparent as Senate Democratic Leader, proclaimed the Senate “should not confirm a Supreme Court nominee except in extraordinary circumstances.

In 2006, President Obama, then a senator from Illinois, Vice President Joe Biden, then a senator from Delaware, Minority Leader Harry Reid, and Judiciary Committee Ranking Member Patrick Leahy led the first filibuster of a Supreme Court nominee, saying that Samuel Alito should not receive an up or down vote.

According to a recent op-ed by former Attorney General Michael Mukasey in the Wall Street Journal, “33 nominees to the high court have failed to win confirmation. Of those, five were simply ignored.”

There is very little modern precedent for this exact situation as presidential election year Supreme Court vacancies are so rare. To safeguard the highest court in the land from being seen as a political body, filling this vacancy should be left to the next president, no matter their political party, after the American public has weighed in on this issue.

MYTH: “Justice Anthony Kennedy was confirmed in a presidential year, so Garland should also be confirmed.

TRUTH: This is a completely different scenario. First, Justice Kennedy was nominated the year prior to the election year. Second, Kennedy’s nomination and confirmation only occurred after the unprecedented treatment of Judge Robert Bork and the withdrawal of Judge Douglas Ginsburg from consideration.

MYTH: “Postponing the consideration of a replacement justice until the American people have had a chance to weigh in isn’t necessary because Merrick Garland is an uncontroversial nominee and should be an easy confirmation due to his long record of moderation.

TRUTH: The decision to not proceed with Merrick Garland’s nomination is one that was made irrespective of his liberal political positions or even his judicial philosophy. This is not about an individual or a disagreement over policy or politics, but a disagreement over the process by which a highly important role with the power to greatly affect the future of the nation should be filled. This is an historic opportunity to give the American people a voice regarding the kind of justice they would like to sit on the Supreme Court.

BACKGROUND

Washington Post: “There Is No Recent Parallel To The Current Situation” “As you can see, there is no recent parallel to the current situation: a president filling a sudden vacancy on the court in an election year when the Senate is controlled by the opposition party, particularly when the vacancy occurred with nearly a year left in the presidential term.” (Glenn Kessler, “Does the Senate have a constitutional responsibility to consider a Supreme Court nomination?,” The Washington Post, 3/16/16)

· “Nearly 200 Years Ago, The Senate Made It Clear That It Was Not Required To Act On A Supreme Court Nomination.” “Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered.” (Glenn Kessler, “Does the Senate have a constitutional responsibility to consider a Supreme Court nomination?,” The Washington Post, 3/16/16)

· “Democrats Who Suggest Otherwise Are Simply Telling Supporters A Politically Convenient Fairy Tale.” (Glenn Kessler, “Does the Senate have a constitutional responsibility to consider a Supreme Court nomination?,” The Washington Post, 3/16/16)

The Atlantic: “Congress’s Surprisingly Productive Year: The House And Senate Passed More Significant Pieces Of Legislation Than At Any Time Since Early In President Obama’s First Term.” (Russel Berman, “Congress’s Surprisingly Productive Year,” The Atlantic, 12/23/15)

Washington Post: “The Last Time A Justice Was Nominated To The Court In A Presidential Election Year And Confirmed By A Senate Controlled By The Opposing Party Was 1888” “For what it’s worth, the last time a justice was nominated to the Court in a presidential election year and confirmed by a Senate controlled by the opposing party was 1888, when President Grover Cleveland nominated Justice Melville Fuller to be Chief Justice.” (Jonathan H. Adler, “On election year Supreme Court vacancies,” The Washington Post, 2/13/16)

WSJ: “Over The Last Two Centuries, 33 Nominees To The High Court Have Failed To Win Confirmation. Of Those, Five Were Simply Ignored” “That is why, over the last two centuries, 33 nominees to the high court have failed to win confirmation. Of those, five were simply ignored, which is what the Democrats fear might happen to Merrick Garland.” (Betsy McCaughey and Michael B. Mukasey, “Obama’s Ahistorical Scolding About the Supreme Court,” WSJ, 4/10/16)

Weekly Standard: “Rarely, However, Has There Been A Divided Government In Which Republicans Controlled The Senate And During Which A Vacancy Occurred That A Democratic President Undertook To Fill.” “In The Oxford Companion to the Supreme Court of the United States, Rayman L. Solomon observes that during periods of divided government, the Senate has been occasionally able “to muster the opposition to block a vulnerable” nominee. Rarely, however, has there been a divided government in which Republicans controlled the Senate and during which a vacancy occurred that a Democratic president undertook to fill. Indeed, you have to go all the way back to 1895 to find a similar situation. The Democratic president Grover Cleveland nominated Rufus Peckham, and the Republican Senate confirmed him six days later.” (Terry Eastland, “A Supreme Election,” The Weekly Standard, 5/2/16)

Think Progress: “On Most Issues, Moreover, It Is Likely That Garland Would Side With The Supreme Court’s Liberal Bloc In Divided Cases.” (Ian Millhiser, “What We Know About The Judges Obama Is Reportedly Vetting For The Supreme Court,” Think Progress, 3/8/16)

SCOTUS Blog: “Garland Also Notably Voted In Favor Of En Banc Review Of The D.C. Circuit’s Decision Invalidating The D.C. Handgun Ban, Which The Supreme Court Subsequently Affirmed.” (Tom Goldstein, “The Potential Nomination of Merrick Garland,” SCOTUS Blog, 4/26/10)

· “Judge Garland Has Strong Views Favoring Deference To Agency Decisionmakers. In A Dozen Close Cases In Which The Court Divided, He Sided With The Agency Every Time.” (Tom Goldstein, “The Potential Nomination of Merrick Garland,” SCOTUS Blog, 4/26/10)

AP: “Merrick Garland’s Judicial Record Over Nearly Two Decades Indicates He Would Side More Often Than Not With The Supreme Court’s Liberal Justices On A Range Of Cases Splitting The Court Along Ideological Lines.” (Mark Sherman, “Garland would move Supreme Court to left, but how far?,” Associated Press, 3/19/16)

WSJ: “Is Supreme Court Nominee Merrick Garland A Judicial Progressive Or A Moderate?His Many Opinions That Defer To Administrative Agencies…Are A Hallmark Of His Jurisprudence” “Is Supreme Court nominee Merrick Garland a judicial progressive or a moderate? One way to judge is to look at his many opinions that defer to administrative agencies and that are a hallmark of his jurisprudence during his nearly 20 years on the D.C. Circuit Court of Appeals. In disputes over union power, his opinions nearly always benefit unions.” (Editorial, “Judge Garland’s Inconsistent Deference,” WSJ, 3/20/16)