Today marks the 100th day since D.C. Circuit Chief Judge Merrick Garland was nominated to the Supreme Court. That is 100 days without formal consideration of his nomination; 100 days without a hearing by the Senate; 100 days with no Senatorial advice and certainly no consent. As Senate Republican leaders continue to refuse to consider Garland's nomination, Justice Scalia's former seat might remain vacant for 100 more.
The situation is "appalling" in the eyes of the judiciary, according to a federal judge who recently spoke out about the delay. He was joined by two colleagues, all former judges, who recently spoke out against the extended vacancy on the Supreme Court, arguing that it made life more difficult for the judiciary and diminished the authority of the Supreme Court and the political system.
Judges Appalled at Delay
The continued vacancy on the Supreme Court brings "real" and "far-reaching" consequences, explained Shira A. Scheindlin, a former judge for the Southern District of New York, during a press conference call organized by the Lawyers' Committee for Civil Rights on Wednesday. With an eight-justice Court and concomitant 4-4 splits, such as yesterday's nonruling on immigration, judges are denied "real, important decisions," Scheindlin explained. The Supreme Court's vacancy deprives courts of "the guidance they need to make informed decisions," she said.
That sentiment was echoed by former Judge Timothy K. Lewis of the Third Circuit, who emphasized that the Supreme Court vacancy would not just end with the November elections but "could continue throughout the entire next term of the Supreme Court."
"Anyone I know who has sat as an Article II judge," Lewis said, "is appalled by what is going on."
Former Judge Stephen C. Robinson, also of the SDNY, lamented that the Court, "held hostage to partisan politics," had seen its authority and respect stripped away. The political struggle over Justice Scalia's replacement does not just affect the court, he argued, but "diminishes the political system" and the politicians who engage in it.
Don't Expect a Change in the Immediate Future
An eight-justice Court is not a fully functional Court, as highlighted so dramatically with yesterday's deadlocked decision over President Obama's immigration plan. But that dysfunction is unlikely to be rectified anytime soon.
Democrats have spoken out against the delay, time and time again. They have performed a mock confirmation hearing. They have submitted, on their own volition, the typical Supreme Court nominee's questionnaire, as though Senate Republicans were willing to consider it. They've even brought Garland out to discuss his experience tutoring disadvantaged children.
But Republicans aren't budging. With voters focused on the election and little political impact from continued obstinacy, Garland's supporters could be running out of alternatives. Forcing a vote on the Senate floor may be the last remaining option, but so far Democratic leaders seem willing to see how things play out before taking such an unprecedented action.