In an op-ed for NewsOne, Benjamin L. Crump, president of the National Bar Association and prominent civil rights attorney, takes Republican senate leaders to task for threatening to block the president’s nominee to replace the late-Supreme Court Justice Antonin Scalia.
He shall … nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” Article II, Section 2, United States Constitution.
This week, the nation marked the day we have all come to know as Bloody Sunday, which occurred in 1965 in Selma, Alabama. Bloody Sunday was a pivotal point in the fight for the Voting Rights Act during the Civil Rights Era, when Martin Luther King, Jr. and other civil rights leaders marched and fought legal battles to prevent states from infringing on minorities’ right to vote.
But here we are 51 years later and U.S. senators who are supposed to uphold the will of the people are fighting against the very people who elected them. Republican Kentucky Sen. Mitch McConnell says that the people should have a voice in who selects the next U.S. Supreme Court Justice, but when he encourages the Senate Judiciary Committee to refuse to hold hearings on any nominee put forth by Barack Obama, he ignores the will of the people who twice elected him president of the United States. The U.S. Constitution states that the president shall nominate judges to the Supreme Court.
As lawyers, few words matter more than the words “may” and “shall.” These two words are the difference between permissible and mandatory. Shall does not grant a person the discretion to comply, they must comply. Our ultimate guide, the U.S. Constitution, often uses the word. For example, shall in the Fourteenth Amendment tells us that for the first time, the U.S. Constitution prevents the states from denying persons their right to due process and equal protection of the law, in the Nineteenth Amendment it prevents all governments from denying women the right to vote; and in the Twenty-Sixth it allows all who have reached 18 years of age the right to vote. Thus, everywhere it is found, particularly in Article II, connotes a mandate, not an option.
Within moments of hearing of Justice Antonin Scalia’s passing, members of the U.S. Senate began to demand that President Barack Obama disregard the mandate that the Constitution placed upon his office. The irony, of course, is that instead of mourning the passing of a U.S. Supreme Court Justice known to be a strict constructionist when referring to the U.S. Constitution, members of the U.S. Senate began a campaign to do the exact opposite. Senate Majority Leader Mitch McConnell and others in the Republican Party asked the President not to look at what the framers of the Constitution instructed Presidents to do, but told him to neglect his duty for the next 370 days. To demand that President Obama refrain from nominating a Supreme Court Justice ignores the will of the American People. When voting for a President, it is widely known that Presidents nominate Supreme Court Justices. In 2008 and 2012, the American People placed that trust in President Obama, and Senate Republicans shall not impede upon the democratic process and the U.S. Constitution.
Including the Scalia vacancy, there are seventy-six judicial vacancies in the Federal judicial system. Out of these nominations, only 12 are awaiting a floor vote. The overwhelming majority of judicial nominations have yet to have a vote within the Senate Judiciary Committee. With a myriad of cases before the federal courts in a given year, the American people deserve much more from their Senate leadership than what they’ve experienced during the past few years. Before the cases have the opportunity to be heard in the Supreme Court, they should have their own day in the lower courts, without unreasonable delay due to the failure of the Senate to do their job, which has caused these unnecessary vacancies. The judiciary should not be clogged due to a backlog of cases caused by political posturing.
A total of 112 Justices have served the U.S. Supreme Court since its formation in 1789 and none have waited more than 120 days from the point of their nomination to be sworn in. It is widely documented that since 1900, all vacancies on the Supreme Court that have occurred during a Presidential election year were filled. What we have occurring now is nothing but a continuation of obstructionist behavior that have left many federal judicial seats vacant for far too long, restricting the reach of justice for many Americans across the country.
Both the Senate and the President have required jobs to perform. The outright declaration to decide that they would not even hear a nomination cannot be reconciled with their alleged ideology to strictly read and interpret the Constitution. The Senate must strictly adhere to Article II of the U.S. Constitution. You shall not find any instruction about delaying a nomination due to an impending election. The framers fail to mention what should occur if one party decides to be obstructionists to the President from another party. What you will find is a duty, an obligation, a mandate placed upon the shoulders of each of the forty-four presidents and the 114 Senates that have pledged an oath to serve this nation. And you shall find it in plainly written in our U.S. Constitution in Article II, Section 2, paragraph 2.
Benjamin L. Crump is the President of the National Bar Association and represents the families of Trayvon Martin and Michael Brown, and the father of Tamir Rice.
PHOTO CREDIT: Getty