“Merrick Garland is an extraordinary jurist who is indisputably qualified to serve on the highest court in the land, and nobody really argues otherwise,” President Obama said Thursday, in a conversation at the University of Chicago Law School. “And I just want to be clear here: If the question is qualifications and excellence, it is uniformly viewed by not just Democrats but also Republicans and those who have served with him — lawyers, judges, legal scholars, members of the current Supreme Court — that he is as good of a judge as we have in this country right now.”
Although Merrick Garland is a veteran D.C. Circuit Court judge who’s earned plenty of respect on both sides of the aisle, Senate Republicans, for the most part, aren’t budging on his nomination.
Out of fifty-four Republican senators, only two—Mark Kirk of Illinois and Susan Collins of Maine— have met with Garland and are pushing for their fellow Republicans to hold hearings for the nominee. John Boozman of Arkansas met also with Garland, on Tuesday, but hasn’t called for hearings. Jerry Moran of Kansas and Lisa Murkowski of Alaska previously shared this sentiment, but have since changed their minds. Both are facing re-election this year.
Iowa Senator Chuck Grassley, the chairman of the Judiciary Committee, tore into Chief Justice John Roberts on Tuesday, blaming his leadership for the ongoing nomination controversy and for many of the progressive reforms of the Obama administration. In a floor speech, Grassley said “the confirmation process has gotten political precisely because the court itself has drifted from the Constitutional text and rendered decisions based instead on policy preferences,” referencing Roberts’s prior refusal to strike down the Affordable Care Act.
Grassley then added, “[Roberts] would be well-served to address the reality, not perception, that too often there is little difference between the actions of the court and the actions of the political branches. So, physician, heal thyself.”
In other words: the Supreme Court has politicized itself. Senate Republicans blocking the court’s nomination process have nothing to do with it!
Following the sudden passing of Justice Antonin Scalia in February, the Supreme Court found itself in a state of limbo. With the court standing at a fifty-fifty split between conservative and liberal justices, Scalia’s successor will likely decide many of the court’s cases for years to come.
Senate Majority Leader Mitch McConnell is leading the charge against Obama’s pick, strong-arming his conference into blocking any nomination until the next president takes office. In a February Facebook post, McConnell avowed, “I am committed to ensuring that the American people have a voice in deciding the next nominee to the Supreme Court. Very rarely in the history of our country has a Supreme Court Justice ever been confirmed in a presidential election year – and 2016 should be no different.”
McConnell could use a history lesson: Nominations in election years are far from uncommon. According to the SCOTUSblog, there have been five instances of confirmations during election years in the twentieth century alone. There were two instances of contested nominations in 1956 and 1968, to appoint William J. Brennan and to find a replacement for Chief Justice Earl Warren. Nevertheless, both controversies ended peacefully, as Brennan was confirmed the following year, and Warren decided to remain in his seat.
In other words, there’s never been any tradition of a lame duck president leaving an empty seat for his successor to fill. And the Supreme Court needs all of its justices — at the very least to avoid 4-4 ties in key decisions. As the old saying goes, a tie is like kissing Mitch McConnell.
Senate Republicans’ hostility towards filling the Supreme Court’s vacancy represents a new chapter in the radicalization of the Republican Party. Congress has turned down more than a few Supreme Court nominees for political reasons, but the prospect of long-term gridlock between the three branches is unprecedented. Can the GOP survive much longer if it divides government not only along ideological lines, but administrative ones as well?
With a devastatingly low 11 percent approval rating, Congress may not have time to find out, especially if a Donald Trump presidential nomination manages to bring record numbers of Democrats out to vote in the general election. Should Hillary Clinton or Bernie Sanders win the 2016 election, each would likely nominate a justice far more left-leaning than Garland.
Photo: U.S. President Barack Obama (C) greets Judge Merrick Garland (R) after announcing Garland as his nominee to the U.S. Supreme Court, in the White House Rose Garden in Washington, March 16, 2016. Vice President Joe Biden is at left. REUTERS/Jonathan Ernst