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By Jordan LaPorta
Liberals are in a tizzy today, and more so than usual. After successfully filibustering President Donald Trump’s immensely qualified Supreme Court nominee, Senate Republicans announced their intention to use the “nuclear option” to confirm Judge Neil Gorsuch.
Senate Democrats such as Chuck Schumer (NY) and Elizabeth Warren (MA) have ranted ad nauseam about how Senate Republican Leadership stole the ninth seat on the U.S. Supreme Court from President Barack Obama’s nominee Merrick Garland. Now they slam the GOP for taking procedural measures to ensure their guy does not suffer the same fate.
Liberal columnists at outlets such as Salon, The New York Times, and The Los Angeles Times have perpetuated the robbery narrative with arguments that fundamentally misunderstand the Constitution’s separation of powers. Sure, Sen. Mitch McConnell’s (R-KY) gutsy gambit can be fairly called a shrewd political tactic – because it was. But an unfair exercise of legislative authority it was not.
Merriam-Webster’s dictionary defines “stolen” as the past participle of the verb steal. According to that same source, to steal means “to take the property of another wrongfully and especially as a habitual or regular practice.” Logically, for Judge Garland to have the seat stolen from him, he needed to have a legitimate claim to it, however no such claim ever existed. Sure, he was nominated to the court by President Obama, but no fair reading of the U.S. Constitution justifies any possible legal claim to a guaranteed seat by a presidential nominee.
Article II, Sec. 2 of the Constitution is crystal clear: “he [the president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.” Both the Senate’s advice and consent are necessary conditions for a nominee to be confirmed the court. Without them, no one – Merrick Garland included – has a right to be seated.
Neither Article II, nor Article III require that the Senate even grant a hearing to a presidential nominee. Not giving Garland a vote – or even a hearing – is a pretty clear sign that the Senate did not consent, and their advice to the president was to appoint someone else. Just because President Obama did not like the advice of his colleagues down the street did not make it either invalid or unconstitutional.
Furthermore, the Constitution’s vague Article III does not require that there be nine justices on the Supreme Court. In fact, it does not even say there must be an odd number of justices to avoid a tie. The Constitution says absolutely nothing about the number of justices at all.
It is actually Congress who holds the power to determine the size of the court, the number of lower courts, and the court’s appellate jurisdiction. America’s highest judicial body began with six total justices under the Federal Judiciary Act 0f 1789. A sixth associate was added in 1807, a seventh and eighth in 1837, and a ninth in 1863. The court did not have nine members until the late 1860s – almost 100 years after the nation’s founding.
In denying Garland, Senate Republicans flexed a muscle rarely used anymore in American politics: the legislative check on the executive. President Obama did not have a popular mandate to appoint Garland, as evidenced by his party’s inability to win control of Congress in the 2010, 2012, or 2014 elections. People often forget that the Constitution is hard-wired against rapid change, and it has built-in protections from small minorities exerting their will on the nation.
So let’s be abundantly clear: Garland had nothing stolen from him. McConnell put his chips on the Republicans winning the White House and keeping Congress, and he won. The Constitution left the appointment of justices to the two political branches, and it is only natural that the process itself has become political.