Action Alert

President Obama Nominates
 Judge Merrick Garland
 To Fill The Vacancy On The Supreme Court

April 4, 2016


In fulfilling his constitution responsibilities as President of the United States, President Barack Obama has now nominated U.S. Court of Appeals for the D.C. Circuit, Chief Judge Merrick Garland to fill the position vacated by the passing of Supreme Court Justice Antonin Scalia.

Under the terms of the United States Constitution, Article II, Section 2, Clause 2, “…[The President] shall…nominate, and by and with the Advice and Consent of the Senate, shall appoint …Judges of the supreme Court…” With the death of Justice Antonin Scalia, it now becomes incumbent upon the President to nominate, and the United States Senate to promptly and fairly consider, a nominee to fill the existing vacancy on the US Supreme Court. Given the high level of importance of many of the cases currently making their way through the courts, as well as the potentially pivotal role the Court could play in November of this year (there are numerous important cases pending, including several redistricting and voters’ rights cases on the horizon, and let us not forget the fact that the US Supreme Court played a pivotal role in the 2000 election in Bush v. Gore), it would be irresponsible of the President or the US Senate to leave the vacancy open for any longer than previously established.

Sadly, there are those who are advocating that President Obama should not nominate, or the US Senate should refuse to even consider, a replacement on the Court for the seat vacated by the late-Justice Scalia. To do this, and to leave the Court without all nine Justices would leave the Court vulnerable to 4 – 4 decisions for what most experts agree would be at least a year, would not only be reckless, it would be disrespectful to the Constitution as well as to all three branches of the federal government and the American people. It could leave cases unresolved; lower courts as well as local, state, and the federal governments could be put in the untenable position of not receiving guidance on extremely important issues; and Justice would not be served. The American people expect nothing less than the President, and the legislature, to do their jobs.

The next President is not scheduled to be sworn in until Friday, January 20, 2017. The last four justices, spanning two Administrations, were confirmed in an average of 75 days. Since 1975, the average is 67 days to confirmation. Over the past two decades, even the longest confirmation process took only 99 days. Furthermore, there is clear precedent for confirming a nominee in an election year. Six Justices have been confirmed in presidential election years, with an average of just over 40 days between when they were first nominated and final confirmation; the most recent case being Justice Anthony M. Kennedy, who was confirmed in February 1988, 65 days after his nomination.

It is clear that the President should nominate a qualified jurist and the Senate must consider his nominee with all deliberate speed. The American people, and the Constitution, deserve nothing less.


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