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Replacing Justice Scalia: Senatorial Dereliction of Duty

Republicans should not put partisan pursuits ahead of U.S. Constitution

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February 24, 2016

This article originally appeared in the Huffington Post on February 24, 2016.

By Laura Beth Nielson

The Republican-controlled Senate's refusal to consider, hold hearings for, or even meet with any Supreme Court nominee proposed by President Obama is not "just" partisan politics as usual. It is not even a very bad case of partisan politics. It is dereliction of duty, constitutional abdication, a violation of the oaths of office they took when they became Senators, and disturbs the balance of power in the United States putting our democracy at risk.

When US Senators take the oath of office, they swear (or affirm) they will "support and defend the constitution." Article II Section 2, paragraph 2 of the United States Constitution is so clear as to be transparent: "The President shall have power, by and with the Advice and Consent of the Senate . . . [to] appoint. . . Judges of the Supreme Court."

The Constitution -- the document our Senators swear to support -- does not say anything about the President's authority and the Senate's responsibility for this task ending any time before the term of presidency does. It is our collective responsibility to ensure that each branch of government is capable of fulfilling its constitutional obligations. Refusing to keep our highest court fully staffed is irresponsible.

Our Constitutional Democracy is founded on and works because of the system of checks and balances and the separation of powers. These are constitutional principles that many of us learned about in junior high school and that have served our Democracy well for over 200 years. When one branch abdicates its duty, it throws the entire system out of whack.

To put this into perspective, consider Illinois. Here in Illinois, we have been in a budget stale mate for seven months because our governor and state legislature cannot do their jobs. They cannot compromise and pass a budget for this year (don't even think about next year!). But, that does NOT mean Illinois is closed for business. It means the programs that courts deem to be "essential" are being funded via court orders. Therefore, areas of government expenditure that impact businesses and have powerful representatives in the courtroom get funded while service agencies for families living in povertystate-supported affordable higher education, and other important state functions go unfunded.

Illinois' legislature and governor may be holding fast to principled decisions, but they also are subverting the Illinois constitution and are allowing, indeed forcing the third branch of our state government, the courts, to make funding determinations which amount to making all of the policy decisions about how our state functions. One branch of government, in many ways the least able to do so, is running our state. When two branches refuse to or are unable to do their jobs, the work of governing does not stop; it moves to a different venue. One that may be far less able to make the kind of informed policy decisions that a legislature and executive can make given their roles.

Stalemates at the Federal level have added significance because in addition to domestic policy, the Federal government maintains our safety and security. That important task is shared by the legislature which sets policy and appropriates funds, the executive, who enforces those laws, and the courts which ensure judicial processes that balance enforcement with due process and fair treatment for those accused of crimes. Handicapping the highest court in the land puts all of these important functions at risk.

Like their counterparts in Illinois, our elected Federal officials cannot agree and the stalemate between President Obama and Congress has resulted in the second-least productive Congress in modern history. And now this obstreperous bunch seeks to undermine the court by leaving Justice Scalia's chair empty for at least a year. Congress and President so deeply at odds, handicapping the courts is short-sighted and dangerous.

To be sure, replacing Justice Scalia is an important task that may have jurisprudential implications for decades. Our Senators have the prerogative and the responsibility to take this job seriously, but this does not extend to total abdication of Constitutional responsibility. How many of us have jobs where we can simply refuse our clear obligations without being terminated?

The dysfunction that has characterized US politics for the past decade, the failure of Congress to act, and the multiple attempts to repeal "Obamacare" rather than dealing with pressing matters, threatens our Constitutional principles. Americans should demand action by writing to their Republican Senators, resist characterizing this stale mate as "politics," and instead name it what is: an abdication of constitutional responsibility. And we should vote for candidates who will follow their oath of office and do their jobs. Our constitution requires it.

- Laura Beth Nielsen is an Associate Professor of Sociology and the Director of Legal Studies and the Alexander Hamilton Project at Northwestern Legal Studies at Northwestern University.

Topics: Opinion