Laws are being followed in replacing Scalia

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The following provides insight on the business of the U.S. Supreme Court in regards to filling the recent vacancy of the court.
On the night of Feb. 12, Associate Justice Antonin Scalia died of natural causes in his sleep while at the Cibolo Creek Ranch in Schafter. No autopsy was performed. On March 16, President Barack Obama submitted to the U.S. Senate the nomination of current U.S. Court of Appeals for the District of Columbia Circuit Chief Justice Merrick Garland to replace Scalia.
As of this writing, the Republican-led Senate has yet to take action on the issue. The nomination is not expected to go beyond submission. The question is, is the situation we’ve arrived at legal?
The United States Constitution Rulebook in regards to the nomination of United States Supreme Court justices states:
• Article II, Section 2, Paragraph 2, in part, of the United States Constitution reads, “(The President) shall have power … by and with the advice and consent of the Senate … (to) appoint … judges of the Supreme Court.”
• Article II, Section 2, Paragraph 3, of the United States Constitution reads, “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
Based on the first paragraph, the president is responsible for putting forth nominations of justices before the Senate, which is then responsible for approving the nomination after hearings, and a formal vote on the floor.
According to the second paragraph, the only way that the president may nominate a new justice to the Supreme Court, without approval of the Senate, is to make a nomination in a time period when the Senate is on sabbatical — called a recess — which the Senate has full control over since it set its own calendar.
This is the totality of guidance from the Constitution on the filling of vacancies on the Supreme Court and all other federal courts. The broadness in the interpretation of the document is what provides the amount of current conflict on the matter of Supreme Court nominations.
Once the president makes a nomination, there is nothing stating that anything else must be done. In effect, the Senate can “pigeonhole,” or ignore the president’s action and still be good as they have to power to ignore legislation brought before the body.
Let’s put the nomination of Garland in perspective. Obama has fulfilled his duties by submitting his nomination.
Depending upon your view, on one hand the Senate has not fulfilled its duty, at least not yet, of having a hearing, followed by a vote, on the matter of approving Garland to the Supreme Court. On the other hand, nothing in the rules of the Senate, much less the Constitution, requires the body to hear the nomination.
Accordingly, all parties have followed the rules of the Constitution, thus far.
Going forward, the Senate typically takes a five-week summer vacation where the body goes into recess. If no action is taken before then, expect the nomination of Garland to be officially pulled down and then, per Paragraph 3 of Section 3 of Article II, if the president was wise, Garland, or some other justice for that matter, will be legally recess appointed to the Supreme Court without confirmation by the Senate for the remainder of the current session — roughly the end of calendar year 2016 — of the Senate where Garland, or whomever is appointed, will make decisions of the court.
In retrospect, the current plan for not having hearings on the nomination that is being argued against by current Democrats is the same plan, the same Democrats — for example Sen. Chuck Schumer of New York — tried to use during President George W. Bush’s last year in office in regards to a Supreme Court nomination. This also occurred in 1992 when Vice President Joseph Biden made comments on the Senate floor to do the same, not have hearings.
The difference is Sen. Schumer did his more than a year before the next election for president and current Republicans are doing it nine months before the next election for president. Biden, then a senator, made his comments five months before the next election for president.
Overall, the Constitution has been followed. Law and order has been maintained. The business of the court will continue with eight justices for the foreseeable future. In the case of a tie, the previous court’s ruling will stand. Despite concern by many involved, the laws are being followed. Politics, however, is what is truly fueling this fire. Both sides are within the confines of the law with mud on their faces and scars of war on their bodies.

Floyd William Holder IV, MPA, MA, is a geography and government Instructor at Western Texas College.