We Need Judges

By Josh Kirmsse

On Tuesday, March 29, the Supreme Court handed down its decision in Friedrichs v. California Teachers Association. The case, featuring a group of California teachers suing their union over mandatory membership fees, threatened to overturn 40 years of precedent. Many anticipated the decision could strike a death knell for unions nationwide. Others were confident that the Court would, with wisdom and depth, uphold previous decisions, pointing the way for future federal courts when tackling this difficult question. Both were disappointed.

“The judgment is affirmed by an equally divided Court,” read their one-sentence decision.

The Court, by virtue of a tie, could not fulfill its duties properly. When future cases arise, lower courts cannot rely on newly elaborated legal reasoning to make decisions. The California teachers and their union are denied a firm understanding of what the future holds. Amid gridlock and polarization, the judiciary seemed to be the only functional branch of our government. That no longer seems to be the case. The Supreme Court desperately needs a ninth member. As editorial after editorial has argued, Senate Republicans should step up and hold a hearing for the incomparably qualified Merrick Garland.

Instead, they’ve played political hot potato with American jurisprudence. Senate Majority Leader Mitch McConnell promised not to hold hearings just minutes after Obama’s announcement, claiming the President was playing politics with the nomination process. Senator Orrin Hatch, just a week earlier, had predicted Obama’s appointment would be “about the election.” His solution? Nominate Garland. Unsurprisingly, once his request had been fulfilled, Hatch welcomed back his partisan blinders. In a New York Times editorial, Hatch himself made the case for “letting the voters decide” on the new vacancy.

Nonsense. The voters decided in 2008 and 2012, when they reelected President Obama in decisive electoral college victories. Senator Hatch was reelected himself in 2012, two years after he said that Garland could be confirmed “virtually unanimously.” The American people should not be required to elect a President and Congress of the same party in order for a nominee to be confirmed. Elections are mandates on candidates and ideas, not reminders that public officials need to fulfill basic constitutional duties.

The obstructionism doesn’t stop with Garland. While the Supreme Court may be making headlines, it isn’t our only judicial vacancy crisis. 84 seats in federal courts sit vacant; 50 nominees are pending; nearly 59,000 cases sit on federal court backlogs at this very moment. Refusal to hold hearings on Garland isn’t an isolated incident. It’s part of an epidemic.

Our Founders foresaw this problem. As Hamilton wrote in Federalist #76, “the intrinsic merit of [candidates] will be too often out of sight.” He knew that the process was not perfect, but believed it to be the best possible system for appointments. Like Hamilton, the Founders were countrymen, holding statesmanship above political disagreement. His hope was that Senators would be “independent” and “public spirited men.” In his vision, the Senate would prioritize integrity over politics. Compromise would be struck in the name of civility.

Unfortunately, that sense of decency is lost upon Senate Republicans. If the GOP hopes to be the party of the Constitution, maintaining the country that our Founders envisioned, they have a moral and civic responsibility to change course. Hold hearings for Merrick Garland. Work with President Obama to revitalize our crumbling judiciary. Senate Republicans, do your job.