OPED With Supreme Court in flux, we must vote

Tribune News Service
FILE - This Feb. 17, 2016 file photo shows the Supreme Court in Washington. President Barack Obama said Wednesday he will reveal his Supreme Court nominee to fill the vacancy of the late Justice Antonin Scalia, and his pick is expected to come from a small circle of federal appeals court judges. (AP Photo/J. Scott Applewhite)

Recent news out of North Korea left Americans feeling helpless and indignant: An American college student was sentenced to 15 years of hard labor for stealing a propaganda poster from a hotel while touring the country. Observers said it wouldn't even be a crime elsewhere and blamed the hard-liners in North Korea for using the case for political ends against the United States. Hostage negotiator Bill Richardson, the former New Mexico governor and one-time U.S. presidential candidate, is trying to negotiate with North Korea for the man's release.

Thank god for foreign diplomacy. If only we had a domestic equivalent.

Back home, another equally frustrating, equally counterproductive and politically motivated standoff holds not just one man's fate, but the Constitution's. And the culprits are our own elected officials, chief among them Sen. Chuck Grassley of Iowa. As a matter of "principle," Grassley, who heads the Senate Judiciary Committee, joins Republican Senate Majority Leader Mitch McConnell in refusing to consider President Barack Obama's nominee, Merrick Garland, for the U.S. Supreme Court. Grassley insists there will be no hearing or vote.

That "principle," however – that the American people should have a say in the judicial selection – has  no basis in the law or history. In fact, according to Drake law school professor Miguel Schor, "The framers (of the Constitution) didn't want the people to have a direct voice in picking." That role rests with the president, with the advice and consent of the Senate, and for good reason. Justices are not, like elected officials, supposed to answer to the public by voting in ways that keep us happy. They are supposed to be guided by constitutional principles. Schor and Yale law professor Bruce Ackerman say the current obstructionism is purely about political self-interest on the part of Senate Republicans.

Obama made it easy on them by offering up a moderate. Ackerman knows Garland, a federal appeals court judge, and calls him a leading jurist. Garland has a record of voting to uphold environmental protection laws but being tough on criminals. In fact, some progressive Democrats complained about his selection. DemandProgress.org, a self-described online activist organization, complained Obama "missed the opportunity to solidify his legacy by appointing a true progressive to the Supreme Court."

The National Republican Senatorial Committee sent out a release calling Garland "a partisan liberal." But its only evidence was nonpolitical statements of support for him by Democratic senators – like "heartwarming pick" (Barbara Boxer), "strong nominee" (Bernie Sanders) and "brilliant" (Harry Reid).

Schor is skeptical that anything will happen until after the presidential election. If a Republican wins, he predicts, Garland's nomination is dead. If a Democrat wins, Garland could be a safer bet for conservatives than someone the president-elect would pick — assuming he doesn't drop out before that.

It's shocking how blatantly politicized senators have allowed the process to become. Since the 1980s every Supreme Court nominee has been given a hearing and a vote, according to the American Constitution Society. In theory, the court can operate with only eight members. But in a split vote, it will need to revert to whatever the lower court decided. That means it sets no legal precedent for the nation. And the court this term has some hefty cases to consider, from college affirmative action, to contraception coverage under the Affordable Care Act, to the funding of public-sector unions.

Some Democrats find it ironic that Republican senators say they look for justices to be strict constitutionalists rather than "activists" who make law. Yet these senators are not complying with the Constitution's articulation of their duties.

At least there are international human rights organizations and diplomatic emissaries to negotiate with North Korea for a student's release. The only leverage Americans have to reclaim a functioning Supreme Court from hostage-takers is the threat of voting those senators out. Let's use it.

— Rekha Basu is a columnist for the Des Moines Register.