What others say: Vote on unions shows perils of leaving court seat vacant

  • Tuesday, April 5, 2016 4:15pm
  • Opinion

In January, the Supreme Court heard arguments in a major labor case whose outcome could affect the lives of millions of Americans. On Tuesday, six weeks after the death of Justice Antonin Scalia, the court’s eight members announced that they were deadlocked in a 4-to-4 vote.

The case, Friedrichs v. California Teachers Association, was an effort by conservative anti-union activists to cripple public-sector unions by prohibiting them from charging non-members fees that support collective-bargaining activities. The plaintiffs had claimed that imposing such fees violated their First Amendment rights. Tuesday’s outcome was a temporary victory for unions, because the teachers’ union had won in the federal appeals court and the 4-to-4 vote means the appellate decision stands. But the issue will most likely come before the justices again; the anti-union forces already have several similar lawsuits moving through lower courts.

Since 1977, the Supreme Court has upheld union “fair share” fees as constitutional. The court has, in fact, reaffirmed that ruling many times in the past four decades. But the evenly divided ruling leaves the issue open to reconsideration, without the affirmation of a longstanding precedent a nine-member court can and should give.

After Justice Scalia’s death, top Senate Republicans announced they would not consider any nominee from President Obama. The blockage, they say, is about “letting the people’s voice be heard” in the presidential election. In the meantime, they claim, an eight-member court can get along just fine.

That’s not true. The Supreme Court is the nation’s final arbiter of legal disputes, and while the Constitution does not mandate a certain number of justices, an 1869 federal law set it at nine. A fully staffed court is needed to resolve this issue, as well as many others that could be headed for tie votes. This term alone, major cases involving abortion rights, religious freedom and women’s access to contraceptives, voting rights and Mr. Obama’s actions on immigration are all at risk.

Mitch McConnell, the Senate majority leader, has said his party’s attitude is “about a principle, not a person.” Yet at the same time he has rejected Mr. Obama’s pick, Merrick Garland, chief judge of the federal appeals court for the District of Columbia Circuit, on the grounds that he is opposed by the National Rifle Association. The Washington Post reported on Monday that a longtime lawyer for the N.R.A., Charles Cooper, is a great admirer of Judge Garland, who he once said would be “among President Clinton’s very best judicial appointments.”

It’s no surprise that other Republicans are also struggling to defend their do-nothing stance, and bungling their messages in the process. Senator Charles Grassley of Iowa, the chairman of the Judiciary Committee, which decides whether to give Judge Garland a hearing, has been dogged by criticism from his constituents at home. “It’s not fair for this man not to get a hearing,” one said to him at a town hall meeting on Monday. “It’s not right for this country to be short-staffed on the Supreme Court.”

Last Friday, Senator Jerry Moran, Republican of Kansas, came under intense fire from Tea Party groups for saying that the Senate should do its job and give Judge Garland a hearing, even though he also promised to vote against Judge Garland before meeting him.

The nation’s founders devised a government of checks and balances, not of obstruction and paralysis. Every day that Senate Republicans refuse to give Judge Garland the consideration he is due, they are embarrassing themselves and ignoring the voices of the people.

— The New York Times,

March 29

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