Editorital by Former U.S.Senator George Mitchell
Sen. Mitchell photo by Ramona du Houx
Controversy over U.S. Supreme Court nominees is nothing new. What we are seeing from Senate Republicans today, however, is what Harvard Law professor Laurence Tribe correctly describes as an “unprecedented” and “shameful abdication of their constitutional duty to provide advice and consent on filling this Supreme Court vacancy.” Never in recent memory has the Senate majority attempted to object not only to a particular nominee but also to the president’s constitutional responsibility to fill a vacancy on the high court.
During my time serving the people of Maine in the U.S. Senate, I had the privilege and responsibility of participating in the confirmation process for eight associate justice nominees. I voted to confirm six of these nominees, including four nominated by Republican presidents. In each case, the nominee received meetings with senators, a hearing in the Senate Judiciary Committee and an up-or-down vote on the Senate floor.
When I was serving as Senate majority leader in 1991, leading a Democratic majority larger than the one held today by Republicans, President George H.W. Bush nominated Clarence Thomas to replace Thurgood Marshall. Within two months of receiving the nomination, the Senate Judiciary Committee began hearings. Despite the immense and lasting controversy that ensued, the nomination was reported out of the committee.
There were 48 senators who were opposed to the nomination. We could have prevented Thomas from being confirmed by using a filibuster to prevent a vote on his nomination. I was urged to do so by many outside groups and several of my colleagues. I refused and decided Thomas should get a vote. He prevailed 52-to-48. We could have denied him a vote and a seat on the Supreme Court, but we insisted on doing the right thing.
We hoped to reverse the dangerous downward spiral in the Senate’s handling of Supreme Court nominees, in which both parties had participated. Unfortunately, our hopes were not realized. The downward spiral has continued and has reached a new low in the reaction of most Republican senators to President Barack Obama’s nomination of Chief Judge Merrick Garland.
A substantial majority of Americans reject the arguments Senate Republicans have put forward to justify their unprecedented blockade of the president’s unquestionably well-qualified and highly regarded nominee. They claim we have to ignore the urgent need to fill this vacancy until the people can decide. Well, the people have decided. Nearly 66 million Americans voted to re-elect Barack Obama in 2012. They believed they were getting a full vote, not three-fourths of a vote. And Obama got a full term, not three-fourths of a term.
None of the Republican senators up for re-election this year who support this blockade have argued that they should recuse themselves from participation in other Senate business until the people can decide, nor should they. They should do their jobs by fulfilling their constitutional responsibility to consider and vote on the president’s nominee.
I commend Sen. Susan Collins of Maine, who has agreed to meet with Garland. Her Republican colleagues should join her and agree to hold hearings and an up-or-down vote on Garland.
Just about everybody in this country, including the Republican members of the Senate, knows that the right thing to do is to hold a hearing and to permit a vote on the president’s nomination. I hope the senators will rise to the occasion, as other senators have done in the past.
George J. Mitchell represented Maine in the U.S. Senate for 15 years, including six as majority leader. He later led Northern Ireland peace negotiations and chaired the International Fact Finding Committee on Violence in the Middle East. This OpEd first appeared in The Boston Globe.