Court Battles

Senate GOP exceeding powers with court blockade, some experts say

Some legal experts claim Senate Republicans are exceeding their constitutional powers by refusing to hold a hearing on President Obama’s Supreme Court nominee.

In a call with reporters, Erwin Chemerinsky, dean of the University of California Irvine School of Law, said Republicans’ decision not to hold a hearing, vote or even a meeting on the nominee is unprecedented.

{mosads}“I can’t identify any other instance where a Senate Judiciary [Committee] has ever said it wouldn’t hold a hearing,” he said. 

The call was organized by the Leadership Conference on Civil and Human Rights, a group often aligned with Democrats.

If Republicans follow through on blocking the nominee, the Supreme Court could be left with a vacancy until spring 2017. Even if the next president were to make a nomination on his or her first day in office, Chemerinsky said it takes time to hold a hearing, which means the seat could be left vacant for oral arguments in the majority of cases next term. 

Edward Fallone, an associate professor of law at Marquette University Law School, called the Republican blockade an “unconstitutional power grab.”

The Constitution, he said, is clear: The role of the president is to appoint a nominee, and the role of the Senate is to provide advice and consent on the nominee.

By refusing to consider any nominee, Fallone claims the Senate is asserting a pre-nomination power that doesn’t exist under the Constitution.

Senate Republicans have said they want to wait until after the election to give the American voters a chance to decide who replaces the late Justice Antonin Scalia, but the legal scholars on the call say the people have already decided.

“The people elected President Obama twice,” said Verna Williams, a Judge Joseph P. Kinneary professor of law at the University of Cincinnati College of Law. “And I dare say when they reelected him they knew what his judicial philosophy was.”

In a guest blog Wednesday on, President Obama said filling the open seat is not a job he takes lightly.

“It’s a decision to which I devote considerable time, deep reflection, careful deliberation and serious consultation with legal experts, members of both political parties and people across the political spectrum,” he said.

Obama said his nominee would have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity.

He said he’s also looking for “someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law.”

“I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent and a determination to faithfully apply the law to the facts at hand,” he said.

Tags Advice and consent Presidency of Barack Obama United States Senate

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