Waffling on judicial nominees

The President had barely stepped away from the podium yesterday after nominating D.C. Circuit Court of Appeals Chief Judge Merrick Garland to the U.S. Supreme Court when Senate Republicans began falling in line with party leaders, saying there would be no hearing or vote on Garland nor any other Obama nominee during the remainder of this term.

That included North Carolina senators Richard Burr and Thom Tillis, who as Policy Watch’s Clayton Henkel pointed out in this post made their positions known on Facebook. (Tillis, by the way, serves on the Senate Judiciary Committee charged with holding hearings on judicial nominees and sending those approved to the floor for an up-or-down vote.)

As we’ve pointed out countless times before in connection with Burr’s role in enabling an embarrassing 10-year vacancy on the federal district court in eastern North Carolina, the senator had a quite different view on the political obstruction of judicial nominees during his earlier years representing the state.

During a 2005 stalemate over judges nominated to the federal courts, Sen. Richard Burr stood on the Senate floor and told his colleagues that regardless of what they thought of any particular nominee, they had an obligation to give each an up-or-down vote.

I believe if one of my colleagues objects to a particular nominee, it is certainly appropriate and fair for my colleague to vote against that nominee on the floor of the Senate.  But denying judicial nominees of both parties, who seek to serve their country, an up-or-down vote, simply is not fair.  It was certainly not the intention of our Founding Fathers when they designed and created this very institution.

That obligation becomes even more critical when it comes to nominees to the U.S. Supreme Court. Here’s more from Sen. Burr:

Obstructing votes on Presidential nominees threatens the future of our judicial system and the nature of the Supreme Court. You see, I am not sure that many Americans have stopped to think: Well, what happens if this is exercised for Supreme Court Justices? Because I believe in the next several years we will have one or two or possibly more Supreme Court nominees to consider.

Well, the Court still meets. If we are not able to produce a Justice out of this fine Hall, then they will meet with eight Justices. I have to believe there is an odd number of Justices for a very logical reason. It was so there would not be a tie.

On a 4-to-4 tie, what happens? Seldom have we asked the question. On a 4-to-4 tie in the Supreme Court, the lower court’s decision stands. That means all of a sudden the Supreme Court, our highest court, the Court we look to to be the best and brightest to interpret law and the Constitution, is insignificant in the process. It means that whatever that court of appeals was—the Fourth Circuit or the Ninth Circuit—whatever decision they came up with that somebody believed was wrong, and they appealed it to the Supreme Court, and the Supreme Court, on the merits of the case, heard it, would become the law of the land.

My colleagues on the other side argue that the reason this is so important is because a Federal judgeship is for life. Let me say to them today, if you exercise this as it relates to the Supreme Court of the United States, and you jeopardize that there may be a 4-to-4 tie, the result is not for the lifetime of the judge you did not seek, it is for the lifetime of this country because that is now the law of the land, that an appellate court, whether it is the Fourth or the Ninth—not the Supreme Court—that will be the ultimate determining factor as to what the law is that our children, our grandchildren, their children, their grandchildren will live by for their entirety.

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