Leahy Guest Column About Constitution Day

Constitution Day: Protecting Our Democracy

By Patrick Leahy

When the Framers signed the United States Constitution, they created a federal system of government with three co-equal branches, designed to work cooperatively but also designed to serve as checks and balances. As we celebrate the 229th anniversary of the signing of the Constitution, Americans across this great nation take time to reflect on its enduring legacy and the many challenges that our constitutional system of government faces.

Those of us who took an oath to uphold the Constitution — and that includes every U.S. senator — have a duty to ensure that our government — created by and sustained by our Constitution — continues to function for the good of the American people.

The Senate plays a unique role in relation to the president and the judiciary. Article II, Section 2, Clause 2 of the Constitution provides that the president “with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court.” With this language, the Framers imposed on the Senate the duty to consider a president’s judicial nominees.

This year, unfortunately, Senate Republicans decided to shirk that fundamental constitutional duty. Within hours of the news in February that Justice Antonin Scalia had passed, Senate Republican leadership declared that they would block any consideration of President Obama’s nominee to the Supreme Court. No hearings. No consideration by the Judiciary Committee or committee vote. No up-or-down confirmation vote in the Senate.

This partisan obstruction of a Supreme Court nomination is not only unprecedented but it is contrary to the constitutional design of the Framers. Senate Republicans’ shutdown of any consideration of the Supreme Court nominee diminishes both of the other co-equal branches of government. It imposes a novel time limit on one of the most important constitutional roles of our president. And it diminishes the role that our highest court can play while it operates with a long-standing vacancy.

Six months ago, President Obama fulfilled his constitutional duty by nominating an exceedingly well-qualified jurist to serve on the Supreme Court: Chief Judge Merrick Garland. He is a dedicated public servant who has served for nearly two decades on the D.C. Circuit Court of Appeals — known as the second highest court in the land. He has earned bipartisan praise for being an undeniably fair-minded judge. In 2010, Republican Senator Orrin Hatch said Chief Judge Garland would be “a consensus nominee” and there was “no question” he could be confirmed to the Supreme Court.

Instead of evaluating his qualifications and reviewing his record, however, Republicans have blocked his nomination on the premise that a president should not be able to appoint a Supreme Court justice in the final year of the term of office.

Such a limiting provision on the president’s powers is found nowhere in the Constitution. There is no “election year” exception in Article II. And the history of our country reflects this fact. Vacancies on the Supreme Court are rare. Vacancies in even-numbered years are rarer still. Yet, more than a dozen Supreme Court justices have been confirmed in presidential election years. Most recently, Justice Anthony M. Kennedy was confirmed by a Democratic-led Senate during President Reagan’s final year in office in 1988.

Appointments to the Supreme Court are among the most important and consequential powers that a president possesses under our Constitution. And the American people have twice voted in record numbers to elect President Obama to exercise this power. In doing so, Americans have granted him the same constitutional authorities of all of our previous presidents for each year he serves.

Moreover, the American people rightfully expect their senators — Republicans and Democrats alike — to continue to do their jobs regardless of whether it is an election year. This year should be no different. We should do our jobs in the Senate rather than do damage to our independent judicial system.

This summer when the Supreme Court completed its most recent term, the damage of Republican obstruction became clear. In seven cases, the diminished high court could not serve as the final arbiter of law when it was unable to garner a majority to issue a final decision on the merits. In another death penalty appeal — a matter of life and death — the justices also deadlocked. And just last month, the high court deadlocked on consideration of an election law case that will impact the constitutional rights of millions of voters ahead of this year’s election.

Next month, the Supreme Court will start its new term and begin hearing cases involving pressing constitutional questions that affect millions of Americans. There is still time for the Senate to correct its course and consider Chief Judge Garland’s nomination. There should not be an empty seat on the bench when the Supreme Court convenes on the first Monday in October.

If there is, it will represent the disrespect that Senate Republicans have not only for the president’s powers under the Constitution but for the independent judiciary that the Constitution created.

On this Constitution Day, I hope that all Americans will take a moment to consider the damage that this partisan obstruction is having on our constitutional system of government. I take seriously the oath I took to uphold the Constitution. I hope that all senators will commit to making sure that our constitutional system of government endures for the next generation.

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[Sen. Patrick Leahy, Vermont Democrat, is ranking member of the Senate Judiciary Committee.]

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