The Developments section of the George Mason Law Review seeks to address the frequent critique that legal scholarship is increasingly disconnected from the needs of the bar by providing shorter essays on timely legal subjects. Through this section, we hope the George Mason Law Review will position itself at the early stages of scholarly dialogue – among academics, practitioners, and judges – fostering emerging topics before they become the subject of longer, traditional scholarly articles.
For our Fall, 2016 issue, our Developments section reached out to Professor Jonathan Adler, the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation at Case Western Reserve University School of Law and John Ehrett, a Yale Law Student, Knight Law & Media Scholar, and 2015-2016 Petitions of the Day/Petitions to Watch SCOTUSblog writer. We asked each of them to articulate arguments on opposite sides of the national debate surrounding the Senate’s refusal to vote on President Obama’s Supreme Court nominee, Merrick Garland. In the following essays, the authors analyze whether the Senate has a constitutional obligation to affirmatively act on a President’s Supreme Court nomination; each author reaches a different conclusion. Mr. Ehrett argues that a perpetual refusal to vote on nominees by the Senate not only results in the Court’s disabled ability to adjudicate effectively, but could result in the annihilation of the Court’s ability to function entirely. On the other hand, Professor Adler argues that the Constitution affords the Senate the right to vote down a nominee, and therefore also affords the Senate the right to refuse to vote on a nominee at all.
It is the hope of both authors, along with the George Mason Law Review, that these articles will help the reader better understand the constitutional arguments regarding this widely debated topic, and will help to inform the ongoing debate on both sides of the aisle.