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The stolen Supreme Court seat

By Kendra L. Tanacea

Photo:  J.W. Diehl


Here I am on the steps of the Supreme Court reminding everyone that the Republican Senate refused to consider Judge Merrick Garland, centrist jurist, for the Supreme Court. Prior to the Garland nomination, as reported by Alex Shepard in New Republic, Republican Senator Orrin Hatch had been a “long-time advocate” for Merrick Garland:


“In 2010, when he [Garland] was considered for the slot that ultimately went to Elena Kagan, Hatch said that he had known Garland for years. He added that, if nominated, he would be a “consensus nominee” and that there was “no question” he would be confirmed.


And just last week, he praised Garland and indicated he was a qualified candidate, saying, “The president told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him. [Obama] could easily name Merrick Garland, who is a fine man. He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”


But President Obama did nominate Judge Garland on March 16, 2016 to fill deceased Justice Scalia’s seat. Against all precedent, the Republican Senate refused to do its job to hold hearings and vote to fill the vacancy, claiming that a justice should not be appointed during an election year – a claim without historical precedence. According to the New York Times:


“Since 1900, the Senate has voted on eight Supreme Court nominees during an election year. Six were confirmed. On average, a nominee has been confirmed, rejected or withdrawn within 25 days. But the vacancy left by Justice Scalia has been unfilled for more than 350 days.”


It is clear that the Republican Senate has violated the Constitution. If allowed to stand, the Senate’s action takes away the President’s right under the Constitution to appoint a Supreme Court justice. So it’s not hyperbolic for me to pick up my Sharpie to say that Senate Republicans stole this Supreme Court seat, as the New York Times Editorial Board has already explained:


“No matter how it plays out, Americans must remember one thing above all: The person who gets confirmed will sit in a stolen seat.


It was stolen from Barack Obama, a twice-elected president who fulfilled his constitutional duty more than nine months ago by nominating Merrick Garland, a highly qualified and widely respected federal appellate judge.


It was stolen by top Senate Republicans, who broke with longstanding tradition and refused to consider any nominee Mr. Obama might send them, because they wanted to preserve the court’s conservative majority. The main perpetrators of the theft were Mitch McConnell, the majority leader, and Charles Grassley, chairman of the Judiciary Committee. But virtually all Republican senators were accomplices; only two supported holding hearings.


The Republican party line — that it was an election year, so the American people should have a ‘voice’ in the selection of the next justice — was a patent lie. The people spoke when they re-elected Mr. Obama in 2012, entrusting him to choose new members for the court. And the Senate has had no problem considering, and usually confirming, election-year nominees in the past. . . . As Paul Krugman wrote in his column on Monday, institutions are not magically self-sustaining, and they ‘don’t protect against tyranny when powerful people start defying political norms.’


This particular norm is of paramount importance because the court’s institutional legitimacy depends on its perceived separation from the elected branches — a fragile concept in the best of times. By tying the latest appointment directly to the outcome of the election, Mr. McConnell and his allies took a torch to that idea — an outrageous gambit that, to nearly everyone’s shock, has paid off. But while Republicans may be celebrating now, the damage they have inflicted on the confirmation process, and on the court as an institution, may be irreversible.”


See the original piece in the New York Times here

About the writer

Kendra, an attorney in San Francisco, specializes in employment class actions. Her debut poetry collection, A Filament Burns in Blue Degrees, is available from Lost Horse Press or Amazon. Kendra’s poems have appeared in 5AM, Rattle, Moon City Review, The Coachella Review, Stickman Review, and Juked, among others. Visit her at


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