COLUMBUS – Failure of the U.S. Senate to hold a hearing on Merrick Garland’s nomination to the U.S. Supreme Court “skews the balance of power that was carefully and wisely set by our nation’s founders,’’ according to an analysis prepared by Ohio Tenth District Court of Appeals Judge Jennifer Brunner.
“The stated refusal of the U.S. Senate to hold hearings on the President’s nomination … is a classic separation of powers dispute,’’ Brunner wrote. “The continued refusal of the U.S. Senate to do its job may extend beyond being characterized as a dispute, but rather, become a Constitutional crisis, and thereby … become a heightened crisis of confidence of the American people in their government.’’
The purpose of the 41-page paper, she said, is to equip the public with the tools needed to judge for itself and decide “what is fair and reasonable behavior when two branches of the government are in conflict, especially when one needs the other to carry out a constitutionally required act for the benefit of its people.’’
The Constitution requires Presidents to nominate Supreme Court justices but justices cannot officially join the court without Senate confirmation.
Part constitutional analysis, part history lesson, Brunner compares Senate leaders’ current pledge to block anyone President Obama nominates to the high court to the 1995-1996 government shutdown during President Bill Clinton’s tenure. In both instances, the public recognized the partisan gamesmanship but simply wanted a functioning government.
To make her case, Brunner takes us back to Clinton’s 1996 State of the State address during which he introduced Congress, and the American people, to Richard Dean.
Dean was an unassuming middle-aged man – a 49-year old veteran who had served in Vietnam and then gone back to work for the Social Security’s Oklahoma City office where he’d been for the past 22 years. When the bomb went off, he went back to into the burning building four times and ended up saving three of his co-workers and bringing out one dead body. After Clinton told his story with cameras fixed on a quiet Mr. Dean sitting next to the Hillary, the entire chamber burst into applause.
When it died down Clinton said:
But Richard Dean’s story doesn’t end there. This last November, he was forced out of his office when the government shut down. And the second time the government shut down he continued helping Social Security recipients, but he was working without pay. On behalf of Richard Dean and his family, and all the other people who are out there working every day doing a good job for the American people, I challenge all of you in this Chamber: Never, ever shut the federal government down again.”
As the paper notes, Judge Garland served as a federal prosecutor in the Oklahoma City bombing case and he often characterizes that act of terrorism as growing out of a lack of respect for the “rule of law.’’
In addition to the history lesson on Richard Dean, Brunner’s “Why the American Public Wants Nine Justices on the U.S. Supreme Court in 2016,’’ is filled with statistics and insights: Judge Garland was confirmed to the D.C. Circuit, the second-highest court in the land, with votes from a majority of Democrats and a majority of Republicans; the Senate has confirmed 123 Supreme Court nominees; George Washington holds the record for the most nominations (13); Jimmy Carter had 0 court nominees; in 1925, the Senate for the first time summoned a Supreme Court nominee to testify before the Judiciary Committee.
If GOP leaders continue to block Garland, the court faces likely 4 to 4 tie votes based on its current ideological makeup, and an eight-member court for many months. Garland’s appointment would expire at the end of this year’s Senate session, and a new President would not take office until the third week of January 2017.
In case members of the public want to contact members of the Senate Judiciary Committee, Brunner lists them all – phone numbers included.
Please give them a call, or call Ohio Sen. Rob Portman. He believes that the vacancy should be filled by the next President. Reach him here: (614) 469-6774