THE CONSTITUTION THAT COULDN'T: EXAMINING THE IMPLICIT IMBALANCE OF CONSTITUTIONAL POWER IN THE CONTEXT OF NOMINATIONS, AND THE NEED FOR ITS REMEDY

Supreme Court Justice Antonin Scalia passed away on February 13th, 2016, after having served on the nation's highest court for thirty years. Just over a month later, on March 16th, Judge Merrick Garland was nominated by President Obama to fill the late Justice Scalia's vacant seat on the bench. In response to the nomination several members of the Senate's Republican majority unilaterally refused to consider approval of Judge Garland. Their reasoning was predicated upon the claim that a nebulous precedent existed against the consideration of Supreme Court nominees appointed by an exiting Executive during an election year. In this article, the author have first argued that the actions of the Senate in refusing to consider nominees for appointments made by the President was an unconstitutional overstepping of authority on the part of the Senate. In so doing, these Senators are disregarding the plain assumption underlying the Constitution that, while checks and balances are necessary for the government to function properly, it still must be allowed to function in the first place.