The broken branch

(Photo credit: Alec Moore/Fourth Estate)

This story was originally published in the Mar. 21 issue of Fourth Estate.

Supreme Court vacancy spurs political controversy

On March 16, President Obama nominated Merrick Garland to fill the vacancy left on the Supreme Court after the passing of Justice Antonin Scalia. The nomination has become a partisan issue as congressional Republicans have argued the next president, not President Obama, should be the one to pick a nominee.

Merrick Garland is the chief judge of the United States Court of Appeals for the District of Columbia Circuit. Before serving on the court, Garland gained national attention when he led the prosecution team in the case against Oklahoma City bomber, Timothy McVeigh, in 1995.

Garland would replace Antonin Scalia, who was viewed as one of the most influential conservative voices on the court since he was confirmed in 1986. Scalia’s passing has left an ideological imbalance among the members of the court, and many Republicans fear a nominee appointed by Obama could increase that disparity.

Texas Republican and Senate Judiciary Committee member John Cornyn explained this perspective to NPR: “The next justice could change the ideological makeup of the Court for a generation, and fundamentally reshape American society in the process.”

Cornyn and other Republican leaders have argued this is an issue that needs to be decided by the American people when they vote this November. Until then, Republicans can use their control of Congress to block a vote on a nominee.

The nomination process has three steps:

  1. The President makes a nomination.
  2. The Senate Judiciary Committee reviews the record and qualifications of this candidate then makes a recommendation on whether the appointee should be appointed or denied. They also have the power to not process the nominee at all.
  3. The Senate debates then votes on whether to confirm or deny the appointment with a 60 vote requirement to confirm.

The second and third steps in this process are where Republicans have leverage, as they lead the Judiciary Committee with Senator Charles Grassley, and they hold a majority in the Senate that could unite to prevent any nominee from reaching the required 60 votes.

“It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on a president and withhold its consent,” Senate Republican leader Mitch McConnell told NPR.

Students and faculty comment on the controversy

“I really disagree with the way the parties divide themselves. It seems like they are just trying to spite each other.”


“I think all of this is dividing the nation, and I think they should just follow the rules while Obama is still in office.”

— Michelle Wallerstedt, integrative studies, junior


“I think Obama has shot himself in the foot and given Republicans a golden opportunity … Now they [Republicans] can either confirm Garland if it looks like Hillary [or another Democrat] is going to be President, or wait until a Republican takes over and puts up their own candidate.”

— Derrik Marow, government and international politics, senior


“I don’t really think it’s fair to wait. Obama has until the end of January 2017 … to nominate the new justice, so he has absolutely every right to be making the nomination.”

— Bridget Bukovich, history, senior


“I think it’s weird because it’s not really precedented. I think it’s kind of unnecessary to wait until after he [Obama] is out of office because that’s not the way that it has been done before.”

— Mackenzie Bailey, communication, senior


“This would be the longest vacancy since the Civil War, assuming the post election nomination takes the average time to pass through the Senate. There was one vacancy longer than a year since the Civil War, but this one would likely last even longer.”


“This partisan divide is a symbol of the brokenness of our political system.”

— Jeremy Mayer, associate professor in the School of Policy, Government, and International Affairs


“President Obama has the constitutional right to nominate federal judges, and the Senate has the constitutional right to confirm or not confirm presidential nominations. Historically, Supreme Court nominations have been confirmed in the last year of a president’s term. But both parties have used the confirmation process to frustrate presidents of the opposite party. Democrats will argue that the Senate should at least consider the nomination and vote on it, up or down, but no one can force the Senate to act. So the battle is a political one, with Democrats saying that the Senate should vote, and Republicans saying that they have the right to wait as long as they want before considering a Supreme Court nominee.”

— James P. Pfiffner, University Professor of Public Policy

Editor’s note: Staff Writer Alec Moore and senior Nico Rodrigo interviewed the above Mason students and faculty as part of a class project for COMM 453: Multimedia Journalism. Check out the video below to see their completed project on this controversy.