Mark Ferrulo: Crippling the Supreme Court

Supreme Court Draped in Black

Before the ink on newspaper headlines had even dried about the Feb. 13 passing of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell of Kentucky said that the Senate should not consider any U.S. Supreme Court nominee until 2017, after a new President is sworn in.

Since then, Florida Sen. Marco Rubio has joined McConnell in his threat to block hearings and a vote on a new Justice. Considering it has never taken a Supreme Court nominee more than 125 days for a confirmation vote, this dereliction of constitutional duty is unprecedented.

Those who are playing politics with President Obama’s Supreme Court nominee conveniently overlook the fact that in 2012, millions of Floridians joined their fellow Americans and re-elected Obama to do his job for another four years. That job includes fulfilling his constitutional obligation to submit nominations for empty seats on the Supreme Court.

Now that Obama has done so, the Senate is obligated to do its job and “advise and consent” on the nominee as required by our Constitution. No exception is made for presidential election years.

The potential repercussions of a missing member of the Supreme Court cannot be overstated. With only eight justices, tied 4-4 votes from the Court would result in a ruling that defaults to decisions made by lower courts.

These tie votes undermine the Constitution’s intent of making the U.S. Supreme Court the highest court in the land, and instead leave the making of federal law to regional circuit courts and state supreme courts.

James Madison must be turning in his grave.

While the Senate is dragging its feet, the president is moving forward with filling empty seats throughout out federal courts. On April 28, he announced three qualified nominees for District Court seats in Florida.

Thanks to obstruction from Sen. Rubio and other Republican Senators, only 15 federal judges were confirmed last year — a record low. The lack of judges has led to record backlogs in courts in Florida and around the country.

And now, the Senate’s inaction could also leave the Supreme Court short-staffed for more than a year.

Without a fully functioning Supreme Court, our constitutional rights could also vary across different parts of the country — a patchwork legal system brought about by a short-handed Supreme Court.

Key cases could also be put off until the Court’s next term, leaving millions of Americans in judicial limbo.

That’s why legal experts from across the political spectrum are urging the Senate to uphold its constitutional duty and provide advice and consent on the president’s Supreme Court nominee, Merrick Garland.

It is noteworthy that one of the leading Republican candidates for Rubio’s job, Rep. David Jolly of Indian Shores, agreed that the Senate’s job is to hold hearings and have votes on nominees to the Court. Jolly recently stated in a debate that “I do think (Garland) should have a hearing, and I would like to see a vote.”

Americans rely on the Supreme Court to rule on the nation’s most critical and divisive issues. As some states, including Florida, pass laws aimed at shutting down abortion providers, health care access for millions of women hangs in the balance. Florida’s high school graduates don’t know whether the Supreme Court will allow states to employ affirmative action to increase student diversity at colleges.

Many Floridians work for religious employers that are seeking the right to deny access to contraceptive health care. Thousands of Floridians have family members or loved ones who fear deportation.

All of these unresolved issues highlight the need for a fully functioning nine-member Supreme Court, and point to the folly of the blatant political obstruction currently playing out in the Senate.

If Sen. Rubio and his colleagues follow through on their threat and refuse to hold hearings and a vote on any Supreme Court nominee until 2017, the negative impact on millions of Americans could reverberate for many years to come.


Mark Ferrulo is executive director of Progress Florida.

Mark Ferrulo


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