Sen. Tester, other panelists speak at UM on US Supreme Court vacancy

by Missoulian

“It’s truly time for Congress to do their damn job,” U.S. Sen. Jon Tester said.

Tester, a Democrat from Montana, was one of three panelists Thursday who spoke about the vacancy on the U.S. Supreme Court following the February death of Justice Antonin Scalia and the subsequent process to fill the empty seat.

The panel, held at the Alexander Blewett III School of Law at the University of Montana, came a week after President Barack Obama nominated Merrick Garland, currently chief judge on the U.S. Court of Appeals for the District of Columbia Circuit, to the high court.

Since the nomination, Republicans in the Senate, led by Senate Majority Leader Mitch McConnell, have said they do not intend to hold hearings or a vote to confirm or deny Garland’s nomination, with McConnell issuing a statement saying, “this vacancy should not be filled until we have a new president.”

In his opening statement introducing the panelists, law school Dean Paul Kirgis said the Supreme Court is always a topic of discussion during election years, but that this year the court “has taken center stage.”


Each of the panelists was asked to discuss a different topic related to the Supreme Court vacancy and nomination. Tester provided his view as one of the members of the Senate, saying the Constitution is clear that it has a responsibility to hold a vote on Garland’s nomination.

“There’s a lot of folks who I work with who wrap themselves in the Constitution when it’s convenient,” he said. “They have decided not to do their job.”

According to the UM student chapter of the American Constitution Society, one of the organizers of the panel, U.S. Sen. Steve Daines, R-Mont., was invited to submit a statement but did not.

Apart from the immediate ramifications of leaving a court vacancy, Tester said the move by Senate Republicans sets a “dangerous precedent.”

“Folks can’t hold an entire process hostage because it’s an election year,” he said.

When he returns to Washington, D.C., after Easter, the senator said he intends to arrange a meeting with Garland to ask him questions about where he stands on issues.

“I get to look the guy in the eye, and I get to determine what he’s made of,” Tester said.


Patrick Peel, a visiting professor of political science and the second of three panelists, spoke about the political aspects of the nomination.

“Most Supreme Court nominees, their nominations are driven solely by politics,” he said.

In his speech, Peel laid out a series of reasons he believes Senate Republicans will continue to avoid holding hearings on Garland. He said there’s an ideological gap between not just Garland and the Republicans, but that Supreme Court nominations always are more contentious when there’s a gap between the nominee and the justice they are replacing. Scalia was commonly thought of as one of the most conservative members of the court, Peel said.

The presidential election isn’t the only one happening this fall. A set of close Senate races also could tip control back to Democrats. While Peel said Supreme Court nominations typically poll very low in terms of priorities for voters, he said Republicans are betting on “taking a stand” resonating with their more active base.


Both Peel and the third speaker on the panel, law professor Anthony Johnstone, agreed that if the November elections don’t go in Republicans’ favor, they could exercise their authority by holding confirmation hearings for Garland in the “lame duck” period of Obama’s presidency.

Johnstone, who teaches constitutional law, spoke about the legal aspects of the nominations, starting his talk by showing the section of the Constitution that says the president will nominate judges to the Supreme Court “with the advice and consent of the Senate.”

“The Senate can’t claim to be performing its role to advise and consent if it’s not meeting to do so,” he said.

Without a nine-member Supreme Court that can decide split cases, Johnstone said the different circuits of the U.S. Court of Appeals will end up serving as the highest court over the various states they hold jurisdiction in.

“You’re going to have places where the Constitution means something different in Texas and Louisiana than in Montana and Idaho,” he said.