“Senate should not act on any Supreme Court vacancies that might occur until after the next presidential election.” – Abner Mikva, Washington Post, Op-Ed, 2002
BACKGROUND
President Obama has said that the Senate has an obligation to vote on Judge Garland’s nomination to the Supreme Court, even though the Constitution gives the Senate the power of advice and consent as a check on the President’s power to nominate. The Washington Post Fact Checker awarded the President “three Pinocchios” for this claim.
MIKVA THEN AND NOW
One of the witnesses slated to testify at the Democrats’ Wednesday forum on the nomination has also disagreed with the President. That witness is Abner Mikva, who formerly served in the role Judge Garland holds now as Chief Judge of the United States Court of Appeals for the District of Columbia.
· In January 2002, just a year into President George W. Bush’s first term in office, Mikva argued in the Washington Post that the Senate should not act on any of President Bush’s Supreme Court nominations for the remainder of his term in office. Here’s what Mikva said then:
“I think the Senate should not act on any Supreme Court vacancies that might occur until after the next presidential election. Changes in the existing delicate balance could put the very legitimacy of the court as an institution at risk. Other than the black robes and the high bench, that legitimacy is all that the court has going for it.”
· He also dismissed concerns that the Supreme Court needs nine justices to function. He explained:
“There is nothing magic about the number nine for the size of the Supreme Court. The Constitution does not suggest a number, and the first court was authorized to have six members.”
· And Mikva rejected an argument that the Senate has any constitutional obligation to move forward with Supreme Court nominations. He said this:
“The appointment of Supreme Court justices is a shared responsibility. The Senate has a plenary power to advise and consent. This has never been perceived to be some kind of rubber-stamp function, and it has been used with substantive results on less compelling occasions.”
CONCLUSION
Of course it’s little surprise that Mikva changed his tune when President Obama took office. Writing with Timothy Lewis—a former judge on the Third Circuit Court of Appeals and another witness set to testify at the Wednesday forum—Mikva objected to the “excessive politicization of the confirmation process” and argued that the Senate should resume an “effective process for confirming judges.”
