A Government Divided Against Itself

by Katherine M. Forbes, 2L Note Candidate
https://www.linkedin.com/in/kathy-forbes-050a788

forbessmall

Among the many important tasks the new Commander in Chief will undertake is the appointment of a new Supreme Court Justice. Where We Stand on Stalled Supreme Court Nominee Merrick Garland, ABC News (October 7, 2016), http://abcnews.go.com/Politics/stand-stalled-supreme-court-nominee-merrick-garland/story?id=42648073 [https://perma.cc/Z9X8-U38C]. Many voters considered this an important element in choosing whom to vote for, with good reason.

Despite being short one justice, the Justices returned to work in October. A short-handed Supreme Court begins a new term, The Economist (October 7, 2016), http://www.economist.com/blogs/democracyinamerica/2016/10/slow-justice [https://perma.cc/S4Q7-R447]. However, because of the one empty seat left by the death of Antonin Scalia, they face the prospect of 4-4 splits, meaning the ruling of the lower Court of Appeals is maintained. In such instances, “[i]t’s as if the Supreme Court never took the case at all.” Supreme Court gamesmanship unjust, USA Today (October 7, 2016), http://www.news-press.com/story/opinion/2016/10/07/supreme-court-gamesmanship-unjust/91722606/ [https://perma.cc/JP6S-8P5Y]. Such toothless results could matter since this new docket concerns a number of cases dealing with race—an issue Americans are still struggling with.

Although tension always existed between the political parties, the standoff between President Obama and the Senate over the current Supreme Court nominee, Merrick Garland, has weakened the power of the Supreme Court (for a season) and perhaps harmed the American public as well. Sun-Times Editorial Board, Editorial: The harm of short-handed Supreme Court, Chicago Sun Times (October 6, 2016), http://chicago.suntimes.com/opinion/editorial-the-harm-of-short-handed-supreme-court/ [https://perma.cc/R46B-XWVV]. Rather than look to Garland’s merits and examine how much he aligns with their approach to Constitutional interpretation, Senate Republicans have taken a hard stance against him simply for being President Obama’s nominee.

This shallow approach to such an important institutional task is a crown of shame for the current Senate. Perhaps the American conscious can take comfort knowing this is not the norm. Rather, in the past, the nine seats of the most stalwart branch of government use to be confirmed by reasonable men and women who looked beyond their party to confirm individuals they trusted would reason with similar Constitutional views. This historical approach to Supreme Court appointments is addressed in Mark A. Graber’s article. Graber, Mark A., Judicial Supremacy and the Structure of Partisan Conflict, 50 Ind. L. Rev. 141 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p141.pdf).

His article gives the academically minded a deeper understanding for why the Court’s present vacancy is significant. He helps us take a step back to see the history of the Supreme Court’s relationship with our dual-party system. He then ties the recent shift in bipartisanship to a weakening of vision and “supremacy” given to the Judiciary. Basically, he reminds us of a time when both parties looked to the broader scope and worked with the Supreme Court to make America’s government an admirable enterprise.

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