A recent letter to the Gazette showcased a letter citing "80 years of tradition" that Supreme Court Justices should not be appointed in a President's last year, and alluding to the so-called "Biden rule" to that effect. The writer also claims that Judge Garland is a liberal judge, whose appointment would "unbalance" the court. Alas! The writer is misinformed on each of these points.
First, the Constitution plainly says that the President "shall nominate … and appoint" Supreme Court justices, and that the Senate shall advise and consent. Constitutional duties of the President on the one hand, and the Senate on the other are clear. As retired Justice O'Connor notes, there is no exception for "the final year of a President's tenure," nor for a Senate majority of one party and a President of another, nor for a black President. Justice Kennedy, currently serving on the court, was appointed in the last year of President Reagan's term, and confirmed by a Democratic Senate. Not only is there no "80-year tradition;" there is no such tradition at all. Refusal to consider a nominee is unconstitutional, and a breach of the Senators' oath of office.
There is no "Biden rule." Senator Biden's Judiciary Committee indeed held timely hearings and candidates Rhenquist, Bork and Thomas were voted upon by the full Senate, as the Constitution prescribes. Senator McConnell as Majority Leader has refused to consider any nominee, while Senator Grassley's Judicial Committee has refused to hold hearings. Republican Senators assert that "the American people should have a voice" in this important appointment. Well, the American people have had their say: they selected President Obama. Twice.
Finally, the notion that "the Supreme Court is balanced" is also untrue. The Roberts Court including Scalia was both far to the right, and it overturned much prior precedent. Citizens United opened the floodgates to a tsunami of dark money into our politics, essentially franchising corporations as "people" and money as "speech." The same Supreme Court gutted the Voting Rights Act – and massive voter suppression resulted. Some 600,000 voters in Texas alone were disenfranchised, while in the Arizona primary polling places were reduced from 200 to 60 in the most populous areas of the state, which just happen to be heavily minority. Proliferating and onerous voter ID laws target minorities, the elderly, and students – groups deemed likely to vote Democratic – as Republicans have acknowledged. When citizens who have voted for decades but do not drive cannot vote; when veterans' military ID cards or student IDs from state universities are not acceptable, these laws seek voter suppression, not preventing (non-existent) fraud.
Republican Senators previously suggested Judge Garland as a potential nominee for the positions now held by Justices Kagan and Sotomayor. Highly qualified and widely respected, Judge Garland is a conservative centrist and he would be an acceptable consensus candidate – if the Republican Senators were not determined to subvert President Obama's legitimate duty to nominate a replacement for Justice Scalia. We need a functional and complete Supreme Court with nine Justices. President Obama has done his job; Republican Senators should do theirs.