A team of legal experts, including Oregon Senator Jeff Merkely and several UO faculty members, took on a discussion about the actions–or lack thereof–of the United States Senate at a panel meeting on Tuesday, May 31.
Senator Merkely, along with James Mohr, a member of the University of Oregon History department, and Stuart Chinn, an Associate Professor at the UO School of Law, participated in a panel discussion concerning the Senate’s refusal to confirm a ninth Supreme Court Justice.
“We are in an extraordinary moment in terms of filling a Supreme Court vacancy,” Senatory Merkely told a room of roughly 40 people. “What we have never had is Senate leadership deliberately going on a job strike.”
Following the death of conservative Justice Antonin Scalia, the Supreme Court found itself in a precarious position. Without a tie-breaking vote, the court is split along stark ideological lines. Four liberal and four conservative justices are now tasked with setting legal precedents for the rest of the country.
President Barack Obama responded to the vacancy by nominating Merrick B. Garland, but he has encountered significant push-back from the Senate, which is refusing to vote on any nominee proposed by the current president.
The neglect from the Republican-led Senate appears to be an attempt to hold out for a Republican win in November’s election and consequently a more conservative-friendly nominee than the relatively moderate Garland.
The refusal to vote on or even debate the nomination is a unique occurrence, but an outgoing president presenting a candidate is not.
“All presidents have considered it their duty to nominate justices when a vacancy occurred,” Mohr said.
In defense of his statement, Mohr explained that the Senate has had to deal with approximately 15 Supreme Court vacancies in the final year of a presidency. A total of 11 of those were filled by Senate confirmation, including four that featured the sitting president being voted out of office to be replaced by one from the opposite party.
“The precedent is in favor of the Senate officially acknowledging nominations,” Mohr said, “even if only to delay confirmation hearings.”
Focusing on the practical implications of stalling and refusing to work with President Obama, Chinn pointed to the relative luck that Republicans have had in their opportunities to find allies in the court.
“We have seen this before,” Chinn said. “Events matter in shaping the law.”
According to Chinn, the two most consequential shifts that have benefited conservatives were the elevations of Clarence Thomas and Samuel Alito to replace Thurgood Marshall and Sandra Day O’Connor respectively. In tandem with former President Richard Nixon’s four Supreme Court nominations, “The Democrats have never had the numbers advantage,” Chinn said.
The resistance to discuss Garland’s nomination is beginning to head in the direction of posting a historically long time to vote on a nominee. Garland was nominated 76 days ago, on March 16; the longest decision took 125 days– the appointment of Louis Brandeis by Woodrow Wilson in 1916.
“The nomination process is at the heart of the balance of powers,” Merkley said. “There is a major concept in the constitution that is being undermined.”

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Senator Jeff Merkley discusses Supreme Court nominations with UO professors