The nomination of Merrick Garland to the U.S. Supreme Court has not shifted the positions of West Virginia’s two U.S. senators, who are constitutionally instructed to “advise and consent” on that nomination.
Republican Sen. Shelley Moore Capito continues to say that the Senate should not even consider a nominee named by President Barack Obama.
Democratic Sen. Joe Manchin said he looks forward to meeting Garland, considering his judicial philosophy and then voting to confirm or deny his nomination.
The partisan viewpoints mirror those of most senators nationally, as Republican Senate leadership has said, long before Garland was named, that they would not even hold hearings to consider Obama’s nominee.
“Before a Supreme Court justice is confirmed to a lifetime position on the bench, West Virginians and the American people should have the ability to weigh in at the ballot box this November,” Capito said in a prepared statement. “My position does not change with the naming of a nominee today.”
Capito, who did not mention Garland in her statement, did not respond to several follow-up questions, including whether Americans already got a chance to “weigh in” when they elected Obama to a four-year term in 2012, or at what specific point in a president’s term he or she loses the privilege of having nominations considered by the Senate.
Just hours after the nomination, Senate Majority Leader Mitch McConnell, R-Ky., declined a routine invitation to meet with Garland.
The U.S. Constitution says the president “shall nominate” justices to the Supreme Court with the “advice and consent of the Senate.”
“Senators have a constitutional obligation to advise and consent on a nominee to fill this Supreme Court vacancy and, simply put, we have a responsibility to do our jobs as elected officials. I believe the Senate must give Merrick Garland fair consideration and evaluate his record, legal qualifications and judicial philosophy,” Manchin said in a prepared statement. “Senators should meet with him, we should debate his qualifications on the Senate floor and cast whatever vote our conscience can allow.”
Despite Obama’s unpopularity in West Virginia, the limited available polling indicates that a slim majority of West Virginians think the Senate should act on Garland’s nomination.
A late-February poll by Orion Strategies, a Charleston firm, found that 52 percent of likely West Virginia voters thought Obama should nominate a justice, rather than wait for the next president. And a nearly identical 51 percent thought the Senate should consider Obama’s nominee.
If the Senate declines to even consider Garland, as Capito and other Republicans propose, the seat could end up remaining open longer than any Supreme Court seat in modern history.
Since the court moved to nine members in 1869, the longest a seat has been open was 391 days, after Justice Abe Fortas resigned in 1969. That seat was open so long because the Democrat-controlled Senate rejected Republican President Richard Nixon’s first two choices.
When Justice Antonin Scalia died, Obama had 342 days left in office. If the seat remains open for the remainder of his presidency, the next president would have two months to get a nominee confirmed before breaking the record.
If the Senate declines to even vote on Obama’s nominee, it would be unprecedented. The longest wait between a Supreme Court nomination and a Senate vote was 125 days, before Justice Louis Brandeis was confirmed in 1916.
In total, 14 presidents have nominated 19 justices to the Supreme Court during election years, according to the White House. Five presidents have even filled Supreme Court vacancies after the next president had already been elected, but before leaving office.
Republican Reps. Evan Jenkins and David McKinley, who, as House members, have no input in the nomination process, both released statements saying Garland should not be confirmed.