Sometimes you don’t value what you have until you experience its absence close up.
We each are deans of law schools; we each have seen, close up, nations without courts independent of political or partisan control. Plagued by conflict and distrust, countries without operating independent judiciaries struggle to earn local and international confidence. In the United States, we see how a fair, impartial, unbiased, and nonpolitical judiciary is central to American justice, permitting economic exchange and peaceful solutions to disagreements. This treasure depends upon the aspiration to maintain a government of laws, not men, focused on each case decided in light of the factual record and not political winds or personal preferences. And this treasure is in jeopardy at the highest level if the Senate refuses even to consider the president’s nominee to be the next associate justice of the Supreme Court.
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Hardly a day elapsed after the death of Justice Antonin Scalia before members of the Senate told President Obama to ignore his clear constitutional duty to nominate a successor — and declared they would refuse to play their constitutionally mandated role of providing advice and consent. Senate leaders have repeated their refusal even to consider the nominee now that Obama has nominated Chief Judge Merrick Garland of the Court of Appeals for the District of Columbia Circuit.
Perhaps some senators fear that they would have no ground to oppose Garland if they actually met him, studied his 18 years of federal judicial service, examined his reputation as one of the most outstanding judges in the country, or learned of his lifetime devotion to public service as a prosecutor, justice official, judge, and lawyer. Perhaps some senators are now suspending their own duties simply because Republican presidential candidates Donald Trump and Senator Ted Cruz think this will help their races, advance their party, or hurt the opposing party. None of those reasons acknowledges the plain text of the Constitution or the jeopardy such obstruction poses to the rule of law.
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Senate refusal to proceed severely injects politics into the selection process and jeopardizes the effective operation of our nation’s highest court. Lacking the ninth justice for what might extend to 12 or more months risks leaving critical matters unresolved, freezing individuals, businesses, and communities in limbo and uncertainty. Two-thirds of Americans want the senators to do their job: Meet Garland, hold a fair hearing, and vote to approve or disapprove.
Article II of the Constitution is not ambiguous. It directs that the president “shall nominate, and by and with the advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court.” The senators swore their oath to the Constitution. An orderly process, adhering to these words of the Constitution, is not only what the law requires; it is essential to preserving the treasure that is our independent judiciary and rule of law. Let’s make sure this treasure survives this electoral season.
Martha Minow is the dean of Harvard Law School. She was, appointed by President Obama to the board of the Legal Services Corporation, where she serves as vice chair. Deanell Tacha, who was appointed by President Reagan to the US Court of Appeals for the 10th Circuit, is the dean of the Pepperdine University School of Law.