Five Reasons That the Supreme Court Vacancy Must Be Filled

On February 13, Justice Antonin Scalia unexpectedly passed away, and the nation has been mourning his death ever since. He unquestionably had a major impact on the law, including on women’s legal rights, in his more than 30 years of committed service on the Court.
Within an hour of the news of Justice Scalia’s sudden death, Republican Senate leaders declared that they would not fill the vacancy created by his death until after a new president is elected. Here are five reasons why it is not only crucial – but also constitutionally required – for President Obama to nominate Justice Scalia’s successor, and for the Senate to fairly and promptly consider that nominee.

  1. The Constitution makes clear that the President and the Senate have responsibilities that they must fulfill now.

Article 2, section 2, paragraph 2 of the U.S. Constitution says the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.”
supremecourtsigniStock_000016612106_LargeThe Constitution doesn’t make an exception for either of these imperatives for the last year of a president’s term. President Obama has indicated that he will promptly fulfill his constitutional duty to nominate a candidate, and once he does so, the Senate must also fulfill its constitutional duty to give its “advice and consent” of the nominee—meaning, give the nominee a fair hearing and a vote.

  1. The Senate has given advice and consent on Supreme Court nominees in election years in the past.

Some Senators have argued that it is unprecedented for the Senate to confirm a Supreme Court Justice in a presidential election year—but that just isn’t true. Six Justices have been confirmed in presidential election years since 1900, the most recent being Justice Kennedy, a Reagan appointee, who was confirmed in February 1988 by a Democratic-controlled Senate (and, coincidentally, was sworn in as a Justice 28 years ago this week). There is no example of a Senate refusing to act because the consideration took place in an election year.

  1. There is plenty of time left in President Obama’s term to confirm a new justice.

Some have argued that there just isn’t enough time for the Senate to undertake the process of evaluating and voting on a Supreme Court nominee. But let’s look at the historical record: every Supreme Court nominee in history has received a vote within 125 days. Of the last 12 Supreme Court Justices confirmed, every one of them was given a hearing and a vote within 100 days. President Obama has more than 330 days left in his term—more than enough time for the President and the Senate to fulfill their constitutional duties.

  1. Leaving a vacancy on the Supreme Court for this long would be unprecedented.

If, as some Senators have argued, the Senate waits until a new president is sworn in to begin the nomination and confirmation process, there would likely be a vacant seat on the Court for over a year. Even if the new president nominates someone on January 20, 2017, the confirmation process takes an average of 67 days—which would bring us to the end of March 2017 before a justice is confirmed to take Justice Scalia’s place.
This means that the Court would be short a justice for the remaining four months of the current term, and almost half of the next term (which begins in October 2016). This would be unprecedented. Indeed, there has never been a vacancy on the Supreme Court lasting more than four months, while the Court has been in session.

  1. The American people rely on the Supreme Court to decide important issues that impact their daily lives – and need a full complement of justices on the Court to do so.

Women come to the courts when they’ve suffered sex discrimination at work or at school, when states try to take away their constitutional rights to make personal and private decisions about their health and reproductive rights, and when there are threats to important economic, health and safety protections that keep women — and their families — safe every day.  The Supreme Court’s interpretation of the Constitution and laws that affect the legal rights of women and girls impact us for generations.
But while the Supreme Court only has 8 sitting justices, some decisions could be tied. These tie decisions do not constitute binding precedent and leave standing the decision of the lower court, for the states in the lower court’s jurisdiction.  If the Court issues a 4-4 decision in a case where lower courts issued conflicting decisions, a 4-4 tie would mean that different states would be bound by different legal precedents. Although not every case is decided by such close margins, the extent to which an equally divided court issues tie decisions creates confusion and frustrates the very purpose of the highest court in the land – to be the final arbiter of the law of the land.
Because the Court’s decisions affect the daily lives of people across the country, the Senators who represent them have a responsibility to make sure the Court has a full complement of justices, so the Court can settle the complicated and critical questions of law before it.