Judge Merrick Garland: The Senate has had plenty of time to consider his qualifications. Credit: Associated Press

SHARE

By

The Supreme Court's annual term has drawn to a close. As is traditional, commentators have been reflecting on the year — the big cases, the changes in the law, the views of the justices. But this year, something is different: Since the passing of Justice Antonin Scalia, the eight-justice court has struggled to do its job. This is a problem that affects the entire judiciary.

The court's struggle is evident in the way it has decided — or failed to decide — numerous cases over the past few months. The justices have deadlocked, 4-4, on important decisions, including the recent immigration challenge. A deadlocked Supreme Court results in affirmance of the decision below; it does not provide a definitive answer for all lower courts to follow. The court also remanded a major health care case to the lower courts with instructions that essentially urge the parties to work things out for themselves.

These deadlocks and remands underscore the need for a full Supreme Court. Back in March, President Barack Obama nominated Chief Judge Merrick Garland, my former boss, to the bench. Months later, the ball remains in the Senate's court. This is a role that the entire Senate, including Wisconsin's Ron Johnson, must take seriously.

An eight-justice court that cannot reach decisions on important questions does a disservice to the legal system. One of the key benefits of having a Supreme Court, rather than simply a series of regional federal appeals courts, is the ability to provide uniformity on difficult legal questions. Without this feature, federal law may differ depending on which court you ask. That makes it hard for citizens, states and businesses to know what the law is.

The need for nine justices counsels strongly in favor of timely Senate hearings for duly appointed Supreme Court nominees. Indeed, that is the traditional practice; the Senate typically acts swiftly on these matters. The Senate has never taken more than 125 days to vote on a nominee, and the average time is much shorter than that — around 25 days over the country's entire history, and closer to 75 days for recent justices. For reference, when Obama nominated Garland back in March, there were 342 days left in his presidency. That has given senators plenty of time to inform themselves about a nominee's qualifications in a hearing and reach a resolution as to whether that nominee is the appropriate choice for the Supreme Court.

My own personal view — as a legal scholar, a former Supreme Court clerk, and before that, a law clerk to Garland — is that Garland is eminently qualified to serve as a Supreme Court justice. His credentials are impeccable. He is meticulous, evenhanded, and incredibly hard working. He has an unwavering commitment to getting the right answer to legal questions. And he is a wonderful human being and mentor who has the ability to get along with every colleague and avoid letting differences become divisive.

But you don't need to take my word for it. Recently, the American Bar Association, one of the largest and most respected nonpartisan legal organizations in the country, released its unanimous evaluation of Garland — giving him the highest possible rating of "well qualified." The association also noted that in interviews with hundreds of individuals in the legal profession and community who knew Garland, "not one person uttered a negative word about him."

The Supreme Court needs nine justices. The Senate, including Johnson, is an integral part of ensuring our country's legal system continues to function properly. That is why they should confirm a consensus-building, thoughtful judge such as Garland to the Supreme Court. Any further delay harms our courts and the rule of law.

Miriam Seifter is an assistant professor of law at the University of Wisconsin Law School and former clerk to Associate Justice Ruth Bader Ginsburg of the United States Supreme Court and Chief Judge Merrick Garland of the Court of Appeals for the District of Columbia.