Cardin sees ‘assault on the Constitution’ in Republican inaction

From left, Dean Joseph Curtis Professor of Law F. Michael Higginbotham, Sen. Ben Cardin and Dean Ronald Weich.

From left, Dean Joseph Curtis Professor of Law F. Michael Higginbotham, Sen. Ben Cardin and Dean Ronald Weich.

U.S. Sen. Ben Cardin (D-Maryland) visited the Angelos Law Center on Friday, April 8 to discuss the vacancy on the Supreme Court and the role of the Senate and the president in the court’s operation.

In “Why Nine?” a discussion open to students, faculty, staff and the public, Cardin said he was “outraged” at Senate Republicans’ refusal to hold hearings on President Barack Obama’s choice to fill the seat left vacant by the death in February of Justice Antonin Scalia.

“I’ve seen a lot in my years in public office, but this is an assault on the Constitution itself and the branches of government,” said Cardin, who was joined by Dean Ronald Weich, Professors F. Michael Higginbotham and Charles Tiefer, as well as by leaders of several organizations devoted to advancing justice.

In a media advisory about the event, Cardin said the consideration of Supreme Court nominee Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, was not a matter for the next president and the next Congress, as Senate Republicans have maintained.

“[I]t is a matter for this president and this Congress,” Cardin said. “There are nine months left in this year and to suggest that we don’t have the time and the president doesn’t have the authority to appoint a nominee is absolutely outrageous – it is an affront to the Constitution. The Senate should do its job, just as the President has done his. The Supreme Court should have nine justices on the bench before it convenes its new term in October.”

Cardin pointed out that Garland was not the only Obama nominee whose confirmation has been held up by Senate Republicans: In the last two years, only 16 presidential nominees to the federal bench have been confirmed by the Republican-controlled Senate; 52 others remain in limbo. By contrast, the Senate confirmed 65 of President George W. Bush’s nominations during the last two years of his tenure, Cardin said.

“We’ve had our partisan differences in the past, but it’s never been to this extreme,” he said.

Professor Higginbotham said Senate Republicans’ refusal to hold a hearing on the Supreme Court nominee was unprecedented.

“It’s the ‘James Bond Villain’ problem,” he said. “They want all the power, all the money, all the glory.”

Professor Tiefer pointed out that Clarence Thomas was confirmed by the Senate in late 1991 by a 52-48 vote, the narrowest margin in over a century.

“Democrats had a cast-iron option to deny cloture, but they didn’t do it,” Tiefer said.

Thiru Vignarajah, deputy attorney general for the state of Maryland, discussed the danger of 4-4 rulings and cited the Supreme Court’s 2013 Term, when 31 of 146 rulings were 5-4 decisions.

“To think that we can operate without the full complement of justices is really concerning,” he said. “It’s bad for the marketplace, bad for business. … There’s a risk that a critical uncertainty goes unanswered.”

Kyle Barry, director of justice programs at the Alliance for Justice, said the Senate’s refusal to hold a hearing could be a matter of life and death for the defendant in Williams v. Pennsylvania, a case now before the Supreme Court.

The issue in the case is whether the 8th and 14th Amendments are violated when a state supreme court justice declines to recuse himself in a capital case in which he personally approved the decision to pursue capital punishment against the defendant in his previous capacity as a prosecutor and continued to lead the prosecutors’ office that defended the death verdict on appeal.

If the high court splits 4-4, the defendant, Terrance Williams, will be put to death.

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