The American Association of University Women (AAUW) joins the nation in mourning the passing of Supreme Court Justice Antonin Scalia. His untimely passing has left a void at a critical time in the history of the court and the country. Many people, including women and their families, have cases pending before the court that may require a full complement of nine justices to be decided. If a court of eight justices renders a split decision, there will not be a resolution. As has been said, justice delayed is often justice denied.
We are fortunate, as a nation, to have a constitutional process to expeditiously fill the vacancy that has been left by the sudden passing of this great jurist. Article 2 provides that the president “shall nominate” a replacement; hearings are then held before the Senate Judiciary Committee, where the nominee and witnesses may testify; a simple majority vote of that committee may send the nomination to the full Senate; the nominee may then be confirmed by the Senate; and, if confirmed, the president appoints the nominee to fill the vacancy.
Before 1981, the approval process was usually quite rapid, typically taking one month. From President Reagan’s administration until today, the process has taken longer, an average of 67 days. The longest, for Justice Clarence Thomas, took 99 days, while Justice Sandra Day O’Connor was confirmed in just 33 days. President Obama’s two previous nominees received hearings and votes within 88 days.
History tells us that there is more than enough time to select and confirm a qualified nominee. There are more than nine months left before the next president takes office. There is also precedent for confirming a nominee in an election year even when the sitting president’s party differs. Justice Anthony Kennedy — though first nominated in November 1987 by Reagan — was confirmed by a Democratica-controlled Senate in the election year of 1988.
In this politically charged election year, there have been assertions by Senate GOP leaders that confirmation hearings will not be held until after the next president is seated in January 2017. These assertions were made even before a nominee was announced by the president. If the Senate fails to perform its duty to promptly act upon receiving a nomination from the president, the Supreme Court will not have a full complement for the bulk of two court terms — well over a year. This unprecedented delay could have dire consequences not only because it creates uncertainty in our courts, but also because it undermines our constitutional system of judicial succession for the highest court in the nation.
The president has met his constitutional duty to designate a nominee. The members of AAUW urge the Senate to perform its constitutional duties in promptly filling the vacancy that now exists on the Supreme Court. In following the orderly process provided, the tradition of this highest of courts will be protected.
Amie L. Bruggeman is a retired attorney and member of AAUW Boise.