David Bernthal/Off the Bench: 'Merit system' and politics ... you be the judge

David Bernthal/Off the Bench: 'Merit system' and politics ... you be the judge

A previous column dealt with the process by which judicial vacancies are filled. Readers may recall that most judicial positions in the Illinois courts are filled through the electoral process while justices and judges serving under Article III of the United States Constitution are appointed. Today's column deals with a recent high-profile example of the latter. Those who think politics matters only when voters choose may find this review of the events enlightening.

The Supreme Court of the United States is made up of the chief justice and eight associate justices. The resulting odd number avoids tie votes when all nine justices participate. The odd number became even on Feb. 13, 2016, when Justice Antonin Scalia died.

While Article III of the constitution is the judicial article, Article II, Section 2 is the source of the power to fill vacancies on the court. That section provides for the president to " nominate and by and with the Advice and Consent of the Senate, shall appoint Supreme Court Justices." To my eighth-grade self that sounded pretty neat and tidy. The words sounded somewhat benign. Perhaps, thought the young me, this was a courtesy extended to the Senate, which could serve as part of the system of checks and balances to keep the president from packing the court with relatives and cronies.

Following the death of Justice Scalia, President Obama started the constitutional process by nominating Chicago native Merrick B. Garland on March 16, 2016. Judge Garland is chief judge of the U. S. Court of Appeals for the District of Columbia Circuit. He had been nominated for a position on that court by President Clinton. The Senate advised and consented, confirming Judge Garland on a 76-23 vote with a majority of Republican senators voting to confirm. He received his commission March 20, 1997.

Nearly two decades later, things proved different. The Senate declined to hold a hearing or conduct a vote. Thus, there was no consent. The advice to President Obama was clearly the Senate will wait until your successor is in office and allow that person to make the nomination. Democrats were outraged, but the nomination expired Jan. 3, 2017, at the conclusion of the 114th Congress.

With the change in the Oval Office, a new nominee arose. President Trump nominated Neil M. Gorsuch to fill the vacancy. Judge Gorsuch was familiar with the process, having been nominated by President George W. Bush to a seat on the Court of Appeals for the Tenth Circuit in May 2006. He was confirmed by the Senate approximately two months later.

Ten years later things did not proceed as smoothly. Apparently still outraged over the treatment of Judge Garland, Democrats initiated a filibuster in an attempt to block a vote. (Since the Democrats are the minority party, the filibuster was the most powerful weapon available.) In response, the Republicans invoked what has been labeled the "nuclear option," which allowed them to defeat the filibuster attempt by a simple majority vote. The vote on the nomination proceeded and Justice Gorsuch was confirmed by a 54-45 vote.

After slightly more than a year the Supreme Court is back to a full roster. Quite a bit happened in the interim. Some of the actions described above will have consequences beyond the swearing-in ceremonies. Who knows how long Democrats will feel resentment flowing from a belief the nomination of Judge Garland was "stolen." Who knows how long the Republicans will hold hard feelings from the filibuster strategy. One thing is likely. The "nuclear option" will affect future outcomes in the Senate. One thing is certain. Judge Garland remains chief judge of the circuit in which the seat of our government is housed.

Some refer to the appointed system of selecting judges as a "merit system." (As an aside, I do not like the term because it wrongly implies that those who run for judicial positions lack merit). When nominated for the important office of circuit judge, both Judge Garland and Judge Gorsuch were found to be nominees of merit. I do not recall any serious suggestion that the merit eroded during service on the appellate court. This time around the nomination of Judge Garland was dead on arrival. That of Judge Gorsuch faced considerable opposition. So, do politics matter in the "merit system"? As the saying goes, you be the judge.

On an unrelated subject, as predicted, my summons for jury duty arrived. I am looking forward to the experience and hoping it will give me some good material for a future column.

David Bernthal, who lives in Mahomet, is a retired 21-year federal magistrate and before that an eight-year associate circuit judge in Vermilion County. His email is askthejudge1@gmail.com.

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