On February 13, 2016, United States Supreme Court Justice Antonin Scalia died, his death creating an unexpected and immediate vacancy for the United States Supreme Court (“SCOTUS”).  The news was met with surprise from the general populous since he was on a hunting trip in Texas, having had dinner with a friend that evening, later dying in his sleep.

Justice Scalia was appointed in 1986 by then President Ronald Reagan, and for 30 years he was known as a staunch conservative.  He was a constitutional strict constructionist, author of scathing dissents, supported States’ rights, dissented in abortion cases (calling for SCOTUS to overrule Roe v. Wade), opposed programs designed to remedy past racism and was a proponent of the death penalty.  Scalia was outspoken, gregarious and widely criticized by liberals.  Whatever is said about him, whether in support or opposition, he clearly led the conservative wing of SCOTUS during his 30 year tenure, which in recent years issued many 5-4 decisions.

As of June 17, 2016, Justice Scalia’s position on the Court has not been filled and we are now into a 125 day vacancy.  It is been 92 days since President Obama named Merrick Garland as his nominee to the Supreme Court.  Article 2, Section 2, Clause 2 of the United States Constitution provides that the President nominates and appoints Justices of the Supreme Court with the advice and consent of the Senate.  Since the end of the civil war, the practice was added wherein a nominee was referred for consideration to the Senate Judiciary Committee for hearings and investigation prior to submitting the nominee to the Senate for a vote.  Beginning in the late 60s, the approval process which previously would take less than a couple of weeks, expanded to over a couple of months due to the intense scrutiny and thorough and unhurried examination of the nominees.

The situation we are facing today is much different.  Senate Majority Leader Mitch McConnell along with Chuck Grassley, Chair of the Senate Judiciary Committee, have taken the position, in which a majority of Republican Senators have agreed, that there will be no consideration of any nominee from the existing President.  Due to the fact that President Obama’s term is ending this year, the theory seems to be that a lame duck President should not be allowed to select a nominee to the United States Supreme Court.  Due to the scrutiny and investigation anticipated during confirmation hearings, along with the new President not taking office until late January, this position makes it likely that the Court’s vacancy will exist for well over a year.

There is no rule that prohibits lame duck Presidents from making nominations to the Supreme Court.  In fact, 14 lame duck Presidents have made 21 appointments in the history of the Court.  However, Republicans argue that the Senate’s inaction does not violate the Constitution, since there is no requirement that confirmation take place within a certain time period.  As further support of their position, Republicans have cited a statement from Senator Joe Biden, who said, in 1992 as Chair of the Senate Judiciary Committee during Bush’s final term, that the Senate Judiciary Committee would seriously consider not scheduling confirmation hearings if President Bush would be in a position to nominate a candidate to the Supreme Court.  So here we sit, with a constitutional provision that doesn’t specifically require a certain action be taken within a prescribed time period.  A recent Public Policy Polling survey indicated that Senator Mitch McConnell now has 11% of the surveyed American population approving of the job he is doing.  Sixty-five (65%) percent of voters want a nominee to have a fair shot of being confirmed. The Alliance for Justice has issued a letter arguing that the Senate has a constitutional duty to provide a hearing and vote on a nominee to the Supreme Court.  These opinions, however, have no binding impact in the current situation.  So we are left with a stalemate and a Supreme Court that resumed its session following the death of Scalia, with the remaining eight justices proceeding to address the business at hand.

So what happens next?  As of the date of this writing, three 4-4 decisions have resulted.  When that occurs, no decision on the merits will be issued; and normally, either the lower federal circuit court decision will be left to stand or the justices may decide to set a case aside for re-argument in the term that starts in October.  The Court has also issued an order directing the lower court give the parties additional time to attempt to resolve the matter on their own.  If you think about the small percentage of cases that ever reach the highest court in America, the fact that three cases during this vacancy have already resulted in a tie vote is somewhat disconcerting.

In Zubik v. Burrell, where the controversy centered around the Affordable Care Act and the provision of free contraception for women, the matter was sent back for further attempts at resolution.  In Hawkins v. Community Bank of Raymore, the lower federal court (8th Circuit) decision relating to women who were forced to guarantee their husband’s business loans was affirmed.  What is disconcerting about that deadlock is that the affirmed decision was one where another federal court located in a different geographic region has ruled differently.  The Supreme Court has often and traditionally resolved important conflicts between the various Federal Circuit Courts.  However, in this particular case, it is clear that the geographic location of the litigants will make a difference in the ruling.  In Friedrichs v. California Teachers Association, the deadlock resulted in an affirmed lower court decision, which found that nonunion employees may be required to pay fees to the union pertaining to collective bargaining initiatives taken on behalf of union members.  Again, this is another case which has wide reaching impact for which a Supreme Court decision would have been significant.  These are exactly the types of cases that one wishes the Supreme Court would resolve.    Current cases pending before the Supreme Court involve issues such as immigration, abortion, affirmative action, and public corruption.  It seems likely that with a vacancy, deadlocks are sure to follow.  It also appears as if the Supreme Court is accepting a smaller number of cases while the vacancy continues.  Some have voiced concern that the lower federal circuit courts will take chances with their rulings knowing that major issues of national importance may not be accepted by the Supreme Court due to the fact that they may shy away from controversial cases.

Admittedly, nomination to the Supreme Court is a monumental event.  The appointment is for life; and each party would like to have the ability to nominate their own respective candidates. Taking great care to select a nominee and confirm the appointment is expected.  However, the question of how long is too long for a vacancy is upon us today.  Is a year too long?  Has the United States Supreme Court become so removed from the typical American voter’s life that this issue doesn’t seem to matter?  When one thinks about the impact that Justice Scalia had on the Court over the past 30 years, it is incomprehensible to think that a vacancy for over a year will have no lasting impact on the American public.

Note that this post is only a brief summary of the SCOTUS vacancy.  It does not constitute legal advice nor does it establish an attorney/client relationship.

Hodges and Davis – June 2016

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