By Judge Tom Jacobs and Natalie Jacobs, coauthors of Every Vote Matters
As you probably know, Supreme Court Justice Antonin Scalia unexpectedly passed away February 13, 2016. That leaves only eight justices on the Supreme Court: four conservatives and four liberals. Many cases on the Court’s calendar are set for oral argument and decision this term. Numerous cases have already been heard, and decisions have been made. Some of the more controversial cases involve important issues that affect all Americans, including contraception, affirmative action in education, voting rights, abortion, and immigration.
Over the past 60 years, more than 1,000 cases heard by the Court have been decided by a 5–4 vote. A tie vote (4–4, for example) results in no decision and leaves the lower court ruling in place. The lower ruling only applies to the states that the lower court has jurisdiction over, not the entire country.
The U.S. Constitution requires the president to name a replacement Supreme Court justice when a vacancy occurs. The nomination goes to the Senate for confirmation or rejection of the nominee. Unfortunately, these responsibilities have no established time limit. However, it is the sworn duty of senators and the president to act within a reasonable period of time and not delay or stall the proceedings for political gain.
March 16, 2016, President Obama announced his nominee to fill this vacancy, Federal Appeals Court Judge Merrick Garland. The Senate has taken no action to confirm or reject this nominee. Typically, a hearing is scheduled, giving the nominee an opportunity to make a statement and allowing senators to ask questions. Several Republican senators, including the majority leader Mitch McConnell, have vowed to block any nomination from President Obama and refuse to act or hold a hearing.
Republicans make up the majority party in the Senate, with 54 Republicans out of 100 senators. In order for the nominee to be confirmed by a simple majority, there needs to be 60 “yes” votes. Essentially, this means that all Democrats and 14 Republicans need to vote yes in order to confirm Judge Garland.
So why is no action being taken on the president’s nomination? Republican senators claim that voters should have a say in who becomes the next Supreme Court justice during this heated election year. They believe the next elected president should make the nomination instead of President Obama since it’s his last year in office. Others view their inaction as political—that is, they believe Republicans are hoping the next president will be a Republican and will appoint a conservative to the court rather than a centrist like Garland.
At least two split decisions have been made by the Supreme Court since Scalia died. These 4–4 decisions not only leave the lower court decisions in place, but they also result in no national precedent being established on the issues. The tie decisions have the potential to maintain a split between federal circuits or jurisdictions within the country. For example, if the controversial case involving President Obama’s immigration reform policies (DACA/DAPA) results in a tie vote, the Appeals Court ruling blocking Obama’s plan would be left in place and will deny the president a chance to revive it while he remains in office. This block could have a serious effect on immigration policies for years to come.
It wasn’t even 24 hours after Justice Scalia passed before Republicans swore to stop all efforts at filling the vacancy until a new president is sworn in, which won’t occur until January 20, 2017. That means the country could go more than a year without the required nine justices on the bench. Politics should not enter into the equation, but we have to be realistic. If the Founding Fathers had wanted a delay when a justice leaves the bench during a president’s final year in office, they would have said so in the Constitution. We believe Justice Scalia (a Republican) would have been against a year’s delay in the selection process. After all, he was the ultimate Constitutionalist or, as he referred to himself, an originalist when it came to interpreting the Constitution.
Thomas A. Jacobs, J.D., was an Arizona Assistant Attorney General from 1972–1985 where he practiced criminal and child welfare law. He was appointed to the Maricopa County Superior Court in 1985 where he served as a judge pro tem and commissioner in the juvenile and family courts until his retirement in 2008. He also taught juvenile law for 10 years as an adjunct professor at the Arizona State University School of Social Work. He continues to write for teens, lawyers, and judges. Visit Judge Jacobs’s website Askthejudge.info for free interactive educational tools that provide current information regarding laws, court decisions, and national news affecting teens.
A former criminal defense attorney, Natalie Jacobs works with her father, Judge Tom, on the teen rights website AsktheJudge.info, helping teenagers and their parents become better informed about youth rights and the laws affecting minors. She has volunteered with the Arizona Innocence Project, which investigates claims of innocence and works to exonerate those wrongfully convicted. Natalie lives in Arizona.
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