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The Supreme Court Judicial Nomination Debate Explained

Posted by Matt Schmidt | Feb 26, 2016 | 0 Comments

With the recent death of  Justice Antonin Scalia, a very important bench on the court has opened up for the Supreme Court of the United States. Justice Scalia was one of the most conservative SCOTUS judges ever of a  court that has for years been divided, with many extremely important decisions in American history going 5-4 in favor of conservative or liberal ideologies depending on the issue. For example, 5-4 cases like Citizens United v. FEC  (conservative) and Obergefell v. Hodges (liberal) have drastically reshaped the meaning of the constitution. Many argue that the multitude of 5-4 decisions have weakened the court's power--obviously, a decision that goes one way or the other depending on the opinion of one justice is not as convincing as a decision that has the approval of all 9 justices.

When any federal court has an open seat, including SCOTUS, the US Constitution provides that the President has the power to nominate the judge with the Senate's "advice and consent." With a year left, President Obama has the power to nominate the next SCOTUS justice. Filling Scalia's seat with a liberal or even moderate justice would tilt the division of the court in favor of more liberal ideologies.  A Republican controlled Senate does not want that to happen, so it has informed President Obama that it will withhold consent and not even meet with any of President Obama's nominations, holding on to hope that the seat could be filled by a conservative justice if a Republican becomes President in the upcoming election.

The Senate majority opines that because President Obama is nearing the end of his presidency, the people should have a say in the direction the court will go in by allowing the upcoming President, elected by the people, to choose the next justice. Critics argue President Obama still has an entire year left under his term and that the people have already voiced their opinion of who should choose the next justice by electing President Obama twice. Such delay could also cause 4-4 deadlock decisions from the current eight justice court.

Traditionally the President has had the primary power to choose a federal judge, with the Senate's power to give the President "advice and consent" being more of a safeguard to ensure the nominee is qualified  to serve. This Senate, however, is using the ambiguity of the phrase "advice and consent" to interpret the Constitution in its favor, effectively taking the President's traditional powers away. The "advise and consent" power is in fact ambiguous, failing to define what "advice" or "consent" means, under what circumstances the Senate must give consent or how long they are allowed to withhold it. Though the Senate has used the "advice and consent" power to delay nominations in the past, it is unprecedented for the Senate to take it to this extreme, vowing to withhold consent before the President has even made a nomination and vowing to do so for this length of time (on the other hand, some feel the Senate is bluffing, using its actions as a bargaining chip to get a more moderate judge on the bench).

If the Senate's intentions are real, however, it could be taking a big gamble. There is a large group of voters who are not happy with these tactics, including the government shut down Republicans caused in 2013. Many argue this latest move to withhold consent is an abuse of the constitutional process. This latest tactic could cause Republicans to lose some of their majority in Congress. If the Senate withholds consent from moderate nominees and a Democrat is voted President in the next election, it will be hard pressed to consent to any of the next President's nomination, however liberal he or she may be.

About the Author

Matt Schmidt

Matt graduated from the James E Rogers College of Law at the University of Arizona in passing the Arizona bar exam in 2010. Matt's primary interest in law focuses on general personal injury and insurance bad faith.


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