Thus far, the nomination of Judge Merrick Garland to the U.S. Supreme Court has hit a “nothing doing” from Senate majority leader Mitch McConnell – a position he advanced within hours of the death of Justice Antonin Scalia. Sen. McConnell, and his colleague Sen. Charles Grassley, chair of the Senate Judiciary Committee, have maintained that the Senate should not consider – much less confirm – a replacement for Justice Antonin Scalia until after the next election. Doing so will, Grassley says, “defer to the American people,” and, according to McConnell, follow a “long-standing tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year.”
There are two casualties of the “do not hear Judge Garland” mantra: history and judicial independence. Regarding the first, since 1912, presidents have nominated six individuals to the Court within the year before a presidential election – for all of whom the Senate held an up-or-down vote: (1) Mahlon Pitney (Taft, 1912); (2) Louis Brandeis (Wilson,1916); (3) John Clarke (Wilson, 1916); (4) Benjamin Cardozo (Hoover, 1932); (5) Frank Murphy (Roosevelt, 1940); and (6) Anthony Kennedy (nominated by President Reagan on Nov. 30, 1987; George H.W. Bush elected Nov. 8, 1988). Thus, if “tradition” is to play a role, the Senate would move forward with hearings and a vote on Judge Garland.
The Senate leadership’s refusal even to consider Judge Garland also deals a blow to judicial independence. What dominates the airwaves, Internet and print media is the question: How will the nominee rule on the high-profile issues of the day? And, the companion question: Will his rulings fulfill the expectations of those whose support put him on the Supreme Court?
These questions presuppose that federal judges are pawns of the president who appoints them. Yet, this notion runs contrary to the Framers’ vision for our nation’s judiciary. As Alexander Hamilton made clear in Federalist No. 78, independence allows the judiciary to fulfill its main purpose in a constitutional government: the protection of the “particular rights or privileges of the people” assured by the Constitution. (The Framers’ commitment to judicial independence is reflected in the Constitution’s grant of salary protection and life tenure to federal judges and justices.)
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Our legislative and executive officials, from city council to the Congress, from mayor to governors and the president, run under a party banner advancing partisan aims. Those electing them have reviewed their platforms to choose them.
The judiciary must stand apart. Our democracy calls on our judges to obey no government official, no politician, no political party, no platform; their service demands allegiance to the Constitution and the rule of law.
The independence of judges from the politicians and political parties that appointed them has a long history in our democracy. Consider these two examples of “disappointed supporters” of Supreme Court justices. When Chief Justice Earl Warren, appointed by President Eisenhower, led a divided Court to a unanimous decision in Brown v. Board of Education, ending “separate but equal” policy in our public schools, hundreds of billboards declared: “Impeach Earl Warren; Save Our Republic.” Likewise, in the past four years, Chief Justice John Roberts, appointed by President George W. Bush, has written two opinions preserving the Affordable Health Care Act to the plain displeasure of many expecting Roberts to lead the ending of Obamacare.
All of us are better off hearing any nominee speak to his/her qualifications, to answer questions put by Republican and Democratic senators on the Judiciary Committee – all to evaluate whether the nominee would discharge the demanding duties of a justice with the distinction and independence the office demands. If Judge Garland came before the Senate, all Americans would hear this record: grandson of a Russian immigrant; public high school valedictorian; Harvard College valedictorian; magna cum laude and law review, Harvard Law School; judicial clerk for Justice William Brennan; Justice Department leader for the prosecutions of the Unabomber and the perpetrators of the Oklahoma City bombings; and chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.
No less important, hearings for Judge Garland would raise awareness of our citizens to the critical significance of a judiciary that is beholden to no political party or movement. What a welcome display of leadership and independence if our state’s senators, Richard Burr and Thom Tillis, spoke out now for full consideration and an up-or-down vote on Judge Garland’s nomination. North Carolinians could take pride in such leadership from its senators.
John Wester, a lawyer with Robinson, Bradshaw & Hinson, is a past president of the N.C. Bar Association.