“We either make ourselves miserable, or we make ourselves strong. The amount of work is the same.” — Carlos Castaneda, American anthropologist and author
Over the past 40 years, the average amount of time taken from the nomination of a U.S. Supreme Court justice to confirmation by the U.S. has been 67 days.
Today marks day 70 since President Barack Obama nominated Judge Merrick Garland, the chief judge of the Circuit Court of Appeals for the District of Columbia, for the high court vacancy left by the death of Justice Antonin Scalia.
And yet not only is there no sign of confirmation, there has been no movement on this whatsoever.
The Republican-controlled Senate is threatening to take the Capitol to historic depths of partisanship by refusing to take action, leaving the Supreme Court locked in a potential 4-4 split well into its next term.
Some say it’s just politics. But it’s worse than that. It’s a dereliction of duty, one the comes without regard for the potential long-term impacts on the nation’s judicial system.
The 70 days is already longer that the length of time taken to vet Chief Justice John Roberts, who was confirmed 62 days after being nominated by President George W. Bush on July 29, 2005, and Justice Anthony Kennedy, who was confirmed 65 days after being nominated by President Ronald Reagan on Nov. 30, 1987.
Yes, it took 87 days to confirm Justice Elena Kagan in 2010, but the nomination hearings started within 49 days of her being named by Obama on May 10 of that year.
Senate Republicans have argued that the nomination for this seat should be put on hold until after the presidential election in November. But doing so sets an historic and reckless precedent.
Since 1900, every nominee, whose name was not withdrawn, has received a vote within 125 days of nomination. And that includes the six nominees who received votes during an election year, including Kennedy. The longest span of time taken before confirmation in the past three decades was the 99 days between the time Clarence Thomas was nominated by President George H. W. Bush to his confirmation in 1991.
Perhaps the greatest injustice is to Garland himself who is more than qualified for the position and would most likely receive bipartisan support — as he did when overwhelmingly confirmed for the D.C. Circuit court in 1997 — if and when nomination hearings are ever scheduled.
As a prosecutor, he led the investigation, prosecution and eventual conviction of Timothy McVeigh in the aftermath of the Oklahoma City bombing. As a jurist, he has more federal judicial experience than any Supreme Court nominee in history and has been praised as one who decides on the merits — and the law — of each case he hears.
He has done his job. The president has done his. And now the American public continues to wait for the U.S. Senate do its job. So far the wait has been 70 days.
If the Senate acts now, it would still have plenty of time to have Garland vetted and confirmed before the Supreme Court begins its new term in October. Doing so would, in the words of Castaneda, put the country in a position of strength — without requiring any more effort of Senate leaders and their supporters who seem determined to keep the nation mired in scorched-earth politics. America can’t afford to give such destructive tactics any more days.