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Even After Trump’s Curiel Remarks, Merrick Garland Probably Won’t Receive A Senate Vote

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Even After Trump’s Curiel Remarks, Merrick Garland Probably Won’t Receive A Senate Vote

U.S. Supreme Court nominee Judge Merrick Garland walks after a breakfast with Senate Judiciary Committee Chair Senator Chuck Grassley (R-IA) on Capitol Hill Washington, April 12, 2016. REUTERS/Yuri Gripas

More than two months have passed since President Obama nominated Judge Merrick Garland to take the vacant seat of the late Justice Antonin Scalia and become the nation’s 113th Supreme Court justice. Garland is a moderate who has been praised by politicians in both parties and whose work on the D.C. Court of Appeals has displayed little discernible ideological bent.

The Senate’s refusal to vote on Garland’s confirmation isn’t surprising – Senate Majority Leader Mitch McConell announced that the Senate would not consider any Obama nominees the very same day Justice Scalia died, once again confirming the 114th Congress’s main objective: obstruction.

What may come as a surprise is that, even after Donald Trump became the Republican nominee, Senate Republicans still refuse to consider Garland over whomever the unpredictable Trump may pick.

To calm Republican concerns that he isn’t really a conservative, Trump released a list of his possible Supreme Court nominees last month. The list is tailor-made for establishment conservatives, including anti-abortion judges like Raymond W. Gruender, who was involved in enforcing a South Dakota law requiring doctors to tell women that abortions “terminate the life of a whole, separate, unique living human being,” and William H. Pryor Jr., who has publicly denounced Roe v. Wade, calling it a “a constitutional right to murder an unborn child.”

Gruender and Pryor may have sounded like candy to a child to Senate Republicans, but what about Trump’s claims that Judge Gonzalo Curiel shouldn’t preside over the Trump University lawsuits against him because he’s “Mexican”? Or his claims that it would be “wild” if he came back to face Curiel as president? The Economist said of those comments, “If Mr Trump wins the White House, he will have a bully pulpit at his disposal from which he could unravel basic principles of American democracy.”

Senate Judiciary Chairman Chuck Grassley said Trump’s remarks should not raise concerns over his ability to nominate a Supreme Court justice. Actually, he believes that “you don’t have any more trouble with what Trump said than when Sotomayor was found saying in speeches that, quote, ‘A wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male.'”

After Grassley’s refusal to disavow Trump’s racist remarks, Senator Harry Reid lambasted him during his opening floor remarks last Tuesday. “Instead of rising above bipartisanship and condemning Trump’s racist attack on a highly qualified judge — by the way, who was born in Indiana — Grassley kisses Trump’s ring and toes the party line,” the Senate minority leader said before reading an excerpt from the Roll Call report in which Grassley stated that Trump “must respect the judiciary” because he has “seen statistics that he’s won over 400 cases, only lost 30.”

“How about that? I find it curious that the chairman doesn’t have time to read Merrick Garland’s questionnaire or give him a hearing but has time to study Donald Trump’s success rate in the courtroom,” Reid commented after reading the excerpt.

Grassley responded by saying that he wouldn’t have said what Trump said about Judge Curiel and disagreed with his assessment, but based on his “Q&As with Iowans last week, they are more concerned about the jobs report that came out on Friday and about how we can get more Americans back to work with decent paying jobs.”

Other members of the Senates Judiciary Committee also refuse to consider Garland’s candidacy despite their negative views, and even fear, of Trump. Senator Lindsey Graham, who has become one of the GOP’s few remaining opponents to Trump, met with Garland but still refuses to support a vote on his nomination. Graham accused Trump of “playing the race card” and called his attacks on Judge Curiel “the most un-American thing from a politician since Joe McCarthy.” Still, he would rather Trump, who he has said he won’t vote for, choose the next Supreme Court justice over even considering the moderate Garland, who he has called “a very capable, honest judge.”

Senator Mike Lee has said that Trump scares him “to death,” and is not ready to endorse him. Still, he stands with his party’s strategy and refuses to support a vote on Garland.

Senator Jeff Flake has stated that Trump’s comments about Curiel ethnicity may provoke a challenge to trump’s candidacy at the convention. “The whole thing that we Republicans say we’re against, this identity politics, to say that if you’re a certain gender or you’re a certain race that you have to vote that way,” Flake said. “He’s just trying to confirm that stereotype that’s completely wrong. It’s offensive, it really is.” Senator David Purdue said he was “troubled” by Trump’s remarks. Still, they will not vote on Garland.

The Republican argument for refusing to vote to fill Scalia’s seat has been that the American people should have a say on his replacement, ignoring that the American people voted for President Obama to make that choice in 2008 and 2012. The Senate’s refusal to vote on Garland’s confirmation is unprecedented. A scholarly article by law professors Robin Kar and Jason Mazzone found that there have been 103 instances in which a president nominated and appointed a new justice prior to the election of the next president. The study did not find a single exception to this practice in American History.

President Reagan, for example, nominated Anthony Kennedy when he was approaching his final year in office, and the Senate unanimously approved Kennedy in February 1988 – less than a year before the end of Reagan’s second term. This is the first time in American history that a president has been denied even the opportunity to fill a vacant seat on the Supreme Court.

The Supreme Court has had eight justices – a number Ruth Bader Ginsburg called “not a good number” — for almost four months now. A March CNN/ORC poll found that two-thirds of Americans want the Senate to hold confirmation hearings on Garland’s candidacy.


Photo: U.S. Supreme Court nominee Judge Merrick Garland walks after a breakfast with Senate Judiciary Committee Chair Senator Chuck Grassley (R-IA) on Capitol Hill Washington, April 12, 2016. REUTERS/Yuri Gripas 



  1. Dominick Vila June 9, 2016

    The reason Sen. Mitch McConnell, and his colleagues in the Republican controlled Senate, refuse to hold hearing to confirm or reject Judge Garland’s nomination to the Supreme Court has nothing to do with his qualifications or record. He has been praised by both Republicans and Democrats, and his record shows his decisions are based on the Constitution and existing laws. The reason for McConnell’s obstructionism is to poke his finger in President Obama’s eyes. He may not use the incendiary rhetoric The Donald loves, but he is no different from Trump.

    1. latebloomingrandma June 10, 2016

      I love how Elizabeth Warren called McConnell out on that very thing.

      1. Dominick Vila June 10, 2016

        I loved the way Mitt Romney put down Donald Trump today. I would not be surprised if there is a major anti-Trump revolt during the GOP Convention, and Mitt, and a couple of others, appear as challengers to The Donald’s nomination.

  2. Siegfried Heydrich June 9, 2016

    Well, then, I can hardly wait to see who Hillary nominates in his place. The republicans may be really wishing they had confirmed Garland this time next year.

    1. Independent1 June 10, 2016

      I don’t think they’d give Hillary a chance to do that; if she’ elected as we all hope, McConnell will rush through confirmation hearings for Garland and most likely approve his nomination for the SCOTUS.

      1. Siegfried Heydrich June 10, 2016

        Which, of course, could all be part of Obama’s calculations . . .

      2. Fred Thomas June 10, 2016

        Obama might withdraw the nomination before the election, in which case, they might be watching the new democratic senate usher in her SCOTUS pick (Obama maybe?)

        1. Independent1 June 10, 2016

          It sure would be great if the SCOTUS nomination would end up that way (with a non right-wing biased judge confirmed and the Dems controlling at least the Senate).

          1. Fred Thomas June 10, 2016


            Odds say Hillary will win it. Click on the “Congress” link and you’ll see the odds of a Democratic senate are also very high (house, very slim odds). All the betting sites have the odds roughly in this neighborhood. The betting sites are far more accurate than polls because the betting sites are where people are willing to put their money where their mouth is. There’s no skin in the game with polls. People will say whatever.

        2. johninPCFL June 10, 2016

          It worked for Taft. Maybe Obama and Warren both.

        3. Dan S June 10, 2016

          That’s kind of sad if Obama did do that. Judge Garland shouldn’t be used as a pawn & I would hope Pres. Hillary Clinton will renominate him if he’s not confirmed this year

        4. Dominick Vila June 10, 2016

          I think President Obama had enough to last many life times. He is going to retire, write a book or two, and enjoy life with his family.

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  3. ronaldlwhitejd June 9, 2016

    The GOP, does not care about the rule of law, paralyzing SCOTUS, for political reasons. Sounds a lot like The Third Reich, all of them. Well, it does not matter, the USA’s days are numbered. Like all genocidal empires, the end is nigh.

  4. zorro037 June 10, 2016

    Graham needs to buy a ton of coherence. If Trump is like Joe McCarthy how he would expect that a nightmarish president Trump could nominate a judge no friend with David Duke? Graham been from the South keep in his heart the old white southern, to this senator David Duke could be an acceptable candidate to Secretary of Justice or you never know, maybe this is the candidate Graham is looking to elevate to Scotus.

  5. Eleanore Whitaker June 10, 2016

    Republican men are control freaks. Period. End of statement. How anyone in their right mind could EVER endorse Donald Trump is beyond the imagination.

    What the GOP wants not that they are in the toilet is absolute control. They will stoop as low as they must to make sure they are in control. See the mental illness in that kind of off balance compulsion?

    The joke is that while the GOP is rallying behind Trump, they will lose even more power because their own Republicans won’t vote for men who are willing to overthrow the government just to take control. They had the 8 Bush years and the 8 Obama years to play their control freak games. Nutty guys like them believe that is limitless.

    Wow..are they ever in for a shock.

    1. Independent1 June 10, 2016

      I’m not sure the ‘control freak thing’ is limited to just Republican men. I think it extends to some Republican women as well (Sarah Palin comes to mind as one example). And Republicans striving to be control freaks is just one of the many nefarious traits that today’s Republicans have brought into the GOP.

      1. Eleanore Whitaker June 10, 2016

        You are so right. It’s just that I was a Republican woman for 33 years from 1966 until 2004 when I left due to Cheney and Bush’s disgusting swaggering and drawling power freaking.

        All I know is that I have NO intentions of allowing what remains of my life to be in total control of the nuts of the GOP, right wing or the Tea Party. This is the most disgusting elements in society today. They represent all that the sewers flush out.

  6. stephaniepalmer June 10, 2016

    Despite the various Republicans who say that trump has been offensive and racist, I knew it was all an act. The way they’re supporting trump, I’m pretty sure they actually really like the way he talks and share his asinine beliefs about many groups of people. rotten bastards, I’d say.

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