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Supreme Court vacancies should always be filled without delay

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This Sept. 19, 2020, photo provided by the Supreme Court, shows the Bench draped for the death of Supreme Court Associate Justice Ruth Bader Ginsburg at the Supreme Court in Washington.

Associated Press

A little over four years ago, I offered my thoughts in a Deseret News op-ed on the controversy surrounding President Barack Obama’s nomination of Judge Merrick Garland to fill the vacancy left on the U.S. Supreme Court by the death of Justice Antonin Scalia. I criticized the Senate’s refusal to consider the president’s nomination. At the time, I was bothered not by the politics of the Senate’s refusal to consider the president’s nomination, but by what it meant for our nation to be left with a Supreme Court that could — and in at least one case did — end up evenly divided. 

In June 2016, I had just finished my first year of law school at Brigham Young University. One of the most important things I gained that year was a deeper appreciation for our constitutional republic and the different institutions which are essential to ensuring that it functions properly. To me, as someone who had spent the previous year of my life drinking judicial opinions from a firehose and working hard to understand them, the most notable institution among the many making up our federal government was the U.S. Supreme Court. 

My reasoning for opining in 2016 that a divided Supreme Court was detrimental to our nation flowed mainly from what I had learned during that first year of law school: that the language of the U.S. Constitution, as well as that of many statutes, is not always clear. And this lack of clarity often necessitates the involvement of an authoritative voice, such as a court, to resolve a dispute. Courts wield the authority decide, based on the law, which side should prevail in a matter in controversy. And they have the power to enforce those decisions. Without courts to resolve disputes, it is likely that some individuals would take the law into their own hands. Likewise, if the political branches of government were permitted to operate free from court-imposed limitations, we would have mob rule in our society. 

A divided Supreme Court does not necessarily mean people will begin taking the law into their own hands or that mob rule will ensue. What it does mean is that some provision of the U.S. Constitution — the supreme law of the land — could be interpreted to mean one thing in Texas and another thing in New York. 

Additionally, the U.S. Court of Appeals for the 9th Circuit could find that a provision of federal law carries one meaning in Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon and Washington, while the 10th Circuit could find that the same provision of law has an entirely different meaning in Colorado, Kansas, Montana, New Mexico, Oklahoma and Utah. Thus, it can create a form of “legal balkanization” when a divided Supreme Court permits a lower court decision which conflicts with another lower court decision to stand as the law of the land. This is what the authors of the U.S. Constitution sought to avoid when they scrapped the Articles of Confederation in 1787.    

As I wrote four years ago, having the Supreme Court operating with an odd number of justices is what ensures that the above-described problem does not happen. What binds our nation together, and prevents the states and territories from looking like Europe, is the U.S. Constitution. Having one final authority to resolve any interpretation disputes — at least with respect to federal law — among the lower courts in the United States, is necessary.   

History has demonstrated that nobody can accurately predict exactly how any qualified judicial nominee is going to make decisions before they are confirmed. The current — and past — partisan bickering about when to fill a Supreme Court vacancy is something each side is arguing based on what they think is best for their political faction rather than what is best for America. As a result, I find that both sides are devoid of credibility on the issue. Any time there is a vacancy on the Supreme Court, it should be filled without delay. The more important question — one over which there can and should be a robust debate — is who will fill the vacancy?  

Ben Aldana is a 2018 graduate of the J. Reuben Clark Law School at Brigham Young University and works as a full-time attorney for the Utah County Public Defender Association in Provo. His views are his own.