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SCOTUS Losing Authority as Vacancy Persists, Former Judge Says

June 22, 2016, 9:46 PM

A former federal judge on Wednesday accused the Senate Judiciary Committee of dragging the U.S. Supreme Court into a “crass political argument” by refusing to hold confirmation hearings on Judge Merrick Garland’s nomination.

“What we have now is a situation where the [Supreme] Court’s authority and aura has been stripped away,” said Stephen Robinson, a former federal district court judge in Manhattan from 2003 to 2010, who is now a partner at Skadden. “The court is being seen as part of this rancorous political process.”

Robinson made his comments during a call organized by the Lawyers Committee for Civil Rights Under Law to mark the 100th day since Garland was nominated to the U.S. Supreme Court. Two other judges, Shira Scheindlin, also a former district court judge in Manhattan, and Timothy Lewis, a former federal appellate judge in Philadelphia, also joined the call.

Robinson, Scheindlin and Lewis were respectively appointed by Presidents George W. Bush, Bill Clinton and George H.W. Bush.

Garland was nominated in March to fill the vacancy created by the death of Associate Justice Antonin Scalia. So far, the Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, has said he won’t hold hearings until after the presidential election.

Speaking first, Scheindlin — who retired earlier this year and is now a mediator with JAMS and of counsel at Stroock & Stroock & Lavan — said the vacancy on the Supreme Court has left a gap that is hurting lower courts. In cases where the justices split 4-4, the lower court decision is affirmed and no national precedent is set.

“The issues are not being decided, the guidance is not being given,” she said.

There are two important cases where decisions still need to be handed down. One involves an abortion law upheld by a district court in Texas. Another is a case related to a legal challenge to President Obama’s immigration policy, said Scheindlin.

Lewis, who retired from the bench in 1999 and is now counsel at Schnader Harrison Segal & Lewis, called Garland “wonderfully qualified” and agreed that the vacancy on the Supreme Court has “real consequences.”

In cases where there’s a circuit split and the Supreme Court does not reach a resolution, he said: “It’s very difficult to know what the law is.”

It was Robinson who had the harshest words about the lack of a confirmation hearings.

“We’ve always had some sense that the Supreme Court is above the fray,” he said, adding, “The Senate has dragged them back into some crass political argument into how the court is constructed.”