Government & Politics

Split decision turns up heat on Senate to find ninth justice for the Supreme Court

The Supreme Court this week split 4-4 on a case for the first time since Justice Antonin Scalia’s death. Democrats are using the case, and others, to increase pressure on Senate Republicans to take up President Barack Obama’s nomination of Merrick Garland (center) for the empty Supreme Court seat. Vice President Joe Biden (left) said Thursday that with an evenly divided court, “the meaning and extent of your federal constitutional rights … all could depend on where you happen to live.”
The Supreme Court this week split 4-4 on a case for the first time since Justice Antonin Scalia’s death. Democrats are using the case, and others, to increase pressure on Senate Republicans to take up President Barack Obama’s nomination of Merrick Garland (center) for the empty Supreme Court seat. Vice President Joe Biden (left) said Thursday that with an evenly divided court, “the meaning and extent of your federal constitutional rights … all could depend on where you happen to live.” NYT file photo

The U.S. Supreme Court issued a simple one-sentence ruling this week in a case involving a Raymore bank and two Kansas City area developers.

The particulars of the legal dispute drew little attention. But the manner of the decision made national news: for the first time since the death of Justice Antonin Scalia, the nation’s highest court split 4-4 on a case.

The tie meant lower court decisions would remain intact, but there would be no formal legal guidance for similar disputes to come. The bank won, but other banks — and borrowers — don’t know what the ruling will mean.

“It was bittersweet,” said Greer Lang, an attorney with Lathrop and Gage who successfully argued for the bank. “It’s critical to have the tie-breaker. The Supreme Court sits to provide the national rule of law.”

John Duggan, a local attorney whose clients lost the case, was equally frustrated with the tie. “Obviously, I think it had an impact,” he said. “I’m sure (the legal disagreement) will continue to fester throughout the United States, creating uncertainty.”

The claims will be music to the ears of many Democrats. They’re now using the case, and others, to increase pressure on Senate Republicans to take up President Barack Obama’s nomination of Merrick Garland for the empty Supreme Court seat.

Without a ninth justice, they say, the court will be split between liberals and conservatives on a range of issues, from free speech rights to contraception services.

“Judicial gridlock arising from chronic tie votes is now a real and present danger,” claimed Sen. Richard Blumenthal, a Democrat from Connecticut, shortly after the ruling.

Vice President Joe Biden made a similar argument in a speech Thursday at the Georgetown Law School. With an evenly divided court, he said, “the meaning and extent of your federal constitutional rights … all could depend on where you happen to live.”

Yet the Senate seems no closer now than it was last week to naming a new justice. Both political parties, in fact, appear to be digging in — using the dispute for their own purposes, including fund-raising and motivating voters for the fall.

Since Scalia’s death in February, most Republicans have supported Senate Majority Leader Mitch McConnell’s insistence that “the American people should have a voice” in picking a justice when they vote for president this fall. The Senate, McConnell has said, won’t hold hearings or vote on any pick for the job.

McConnell has used Biden’s own words as a senator to support that position.

In a release Thursday, Andrea Bozek of the National Republican Senatorial Committee accused Democrats of “grandstanding” on the issue.

“Their goal is clear,” she wrote. “They want to ram Barack Obama’s liberal nominee through the process in order to reshape the Supreme Court for a generation. And they want to do it without hearing from voters.”

But Democrats and liberal activists have pushed back, sensing popular support for a vote this year.

Monday, a handful of liberal activists protested outside Sen. Roy Blunt’s Kansas City office, demanding a vote on a new justice. “It’s time for Senator Blunt and others to do their job, like we do ours,” said Alison Dreith, executive director of NARAL Pro-Choice Missouri, a group that supports abortion rights.

Public opinion in Missouri is almost evenly split. In a Fort Hays State University poll taken just before the state’s March 15 presidential primary, 47 percent of Missourians surveyed said the Senate should vote now on a replacement for Scalia. Forty-six percent said the new president should make the pick. The results were well within the poll’s margin of error.

The state’s two senators are deeply divided on the matter. In an interview this week, Sen. Claire McCaskill sharply criticized the Senate’s inaction on the Garland nomination.

“Vote no on this nomination if you disagree with this nomination,” she said. “But don’t set a precedent that we don’t have a hearing.” McCaskill mentioned Blunt by name, a rare poke at her Republican colleague.

Blunt’s view on the empty seat has been cloudier. Before the Garland nomination, he said he would oppose any justice suggested by President Obama, but did not oppose a floor vote on the pick.

“I certainly don’t mind taking a vote on this issue,” he told reporters in mid-February.

Yet Blunt has not said whether he’ll meet with Garland, or if he supports hearings on the nomination. Other Republicans, including some running for re-election this year, have said they would support hearings and might meet with the nominee.

The campaign for the Republican’s Senate opponent — Missouri Secretary of State Jason Kander — has criticized Blunt’s stance.

“Senator Roy Blunt made it clear he has no plans to do his job,” said campaign spokesman Chris Hayden.

The statement came in a fund-raising appeal. McCaskill has also used the dispute to raise money for Democratic causes.

At least one outside group associated with Obama has asked for donations to push through the nomination, and EMILY’s List — an interest group founded to help women candidates — is asking for donations to elect Democrats to the Senate, based in part on the Supreme Court fight.

Republicans have raised money from the dispute as well.

In Kansas, the state’s two senators, both Republicans, have taken different approaches to the Supreme Court fight.

Sen. Pat Roberts has sharply rejected consideration of any nominee. “I think we have to wait,” he said. “This president came to office, he didn’t say he was going to reform the United States, he said he was going to transform it. That’s why you have all this anger and passion. … Let’s let the people decide.”

Roberts’ GOP colleague, Sen. Jerry Moran, has been less assertive. This week, in a town hall meeting in Garden City, Kan., Moran said the confirmation process “ought to go forward,” according to the Garden City Telegram.

“I would rather have you complaining to me that I voted wrong on nominating somebody than saying I’m not doing my job,” Moran said. The statement was seen Thursday as a major break with Senate Republicans who oppose any Obama nominee.

Yet Moran also said he doubted any Obama nominee would meet his standards.

Republicans may be hedging in part because national polls show some support for a vote on Garland’s nomination. In a Quinnipiac poll released Thursday, 62 percent of Americans surveyed said Garland should get a vote. Only 33 percent said the Senate should wait.

Biden pressed the case in his speech Thursday. “The longer this high court vacancy remains unfilled, the more serious a problem we will face,” he said.

Sen. Chuck Grassley of Iowa — the chairman of the Judiciary Committee, and a Republican facing pressure for his opposition to Garland — said voters should be heard first.

“The American people should be provided an opportunity to weigh in on whether the court should move in a more liberal direction for a generation, “ he said in a statement Thursday.

Other conservatives scoffed at the idea that an evenly divided court would cause lasting problems in the United States.

“The legal system,” wrote commentator and editor Jazz Shaw, “has yet to collapse into dust” after the tie decision.

Dave Helling: 816-234-4656, @dhellingkc

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