Statement: Postpone SCOTUS Action: This Isn’t An Abrogation Of Senate’s Duty, But An Exercise Of It

WASHINGTON, D.C. – Just hours ago, President Obama announced that he is nominating D.C. Court of Appeals judge Merrick Garland to the United States Supreme Court. This announcement comes at a time when our country is at a crossroads.

Erin Hawley, legal fellow at the Independent Women's Forum, associate professor of law at the University of Missouri, and former clerk to Chief Justice John G. Roberts Jr., issued the following response:

"First, the vacancy to be filled is that of conservative legal champion Justice Antonin Scalia. Known for his quick wit and biting opinions, Justice Scalia transformed the way that courts and lawyers interpret the text of the Constitution. His theory of originalism constrained the ability of unelected judges to substitute their own subjective view of how a constitutional provision should operate for the original understanding of the text. So too for statutes. Justice Scalia insisted that courts look to the actual words of a statute– the democratically enacted text–not to a judge's own view of what a statute should accomplish. Needless to say, there will be no replacing Justice Scalia. But his legacy reveals just how much is at stake with this appointment of his replacement.

"Ironically, it is precisely because not all judges and not all administrations share Justice Scalia's view that the powers of the federal judiciary are limited that so much is now at stake. As the Supreme Court decides issue after issue that would better be left to the democratically elected branches, the constitutional checks placed on the Court become even more important.

"This is why it is critical that the Senate postpone action on this vacancy and wait for the American people to make their will known through the next election. This is not an abrogation of the Senate's duty, but rayher an exercise of it. The advise and consent clause gives the Senate the power to reject a presidential nominee. As President Obama himself recognized while a senator, the people should have a say in their nominee when a vancancy arises in the midst of a presidential election. The Senate should ensure that the next President can appoint the next Supreme Court nominee, by refusing to take up consideration of this nominee." 

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