WASHINGTON (George Curry Media) – President Obama’s decision to nominate U.S. Appeals Court for the District of Columbia Circuit Chief Judge Merrick B. Garland on Wednesday to succeed the late Antonin Scalia on the U.S. Supreme Court was immediately rejected by Republican leaders who are declining to hold confirmation hearings on any Obama nominee to the court during his final year in office.
In a rare move, Senate Majority Leader Mitch McConnell, R-Ky., has declined a courtesy meeting with Garland.
“Rather than put Judge Garland through more unnecessary political routines orchestrated by the White House, the leader decided it would be more considerate of the nominee’s time to speak with him today by phone,” McConnell’s spokesman, Don Stewart, said in a statement issued March 16.
“The leader reiterated his position that the American people will have a voice in this vacancy and that the Senate will appropriately revisit the matter when it considers the qualifications of the person the next president nominates. And since the Senate will not be acting on this nomination, he would not be holding a perfunctory meeting, but he wished Judge Garland well.”
Senate Judiciary Committee Chairman Charles E. Grassley, R-Iowa, not mentioning Garland by name, said, “A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests.”
During this period of heightened political partisanship, the replacement of arch-conservative Scalia on the court, which could alter its conservative 5-4 edge, has received increased attention. It is an issue on the presidential campaign trail, both among Democrats and Republicans, and all sides recognize the appointment could profoundly affect generations of Americans. Moreover, the next president could get as many as three more appointments to the court because of aging justices.
Obama’s decision to nominate a compromise candidate – one not as liberal as the previous frontrunner, fellow appeals Judge Sri Srinivansan, and one who at 63 is older than most recent appointees, limiting the time Garland will spend on the court, if confirmed – left Obama in a familiar position. In an effort to reach out to Republicans, Obama typically offers a compromise even before negotiations begin in earnest, hoping to reach a deal.
Instead, once Obama’s position is made public, Republicans quickly and uniformly reject his proposal, leaving him with a watered down proposition stalled on his desk. It is a pattern that has dogged Obama throughout his presidency.
Many Democratic activists had recommended against nominating a centrist judge such as Garland, preferring that the president draw a line in the sand. For example, if Obama had appointed a Black woman who was then denied a Senate confirmation vote, that would undoubtedly galvanize Black voters, who are key to any prospect of a Democratic White House victory in November.
“The fact that he would once again look over Black women for this specific appointment is an absolute slap in the face to his top supporters,” Avis A. Jones-DeWeever, founder of the Exceptional Leadership Institute for Women, told the Associated Press. “I’m not motivated to lift one finger to get this nomination through.”
Boldly nominating a Black woman to the Supreme Court does not fit the style of “no-drama Obama,” as he is often called, and the president took pains Wednesday to point out how carefully he had picked someone who should appeal to Republicans, most of whom have opposed any major initiative during his first seven years in office.
“To suggest that someone as qualified and respected as Merrick Garland doesn’t even deserve a hearing, let alone an up or down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise – that would be unprecedented,” he said. “To suggest that someone who has served his country with honor and dignity, with a distinguished track record of delivering justice for the American people, might be treated, as one Republican leader stated, as a political ‘piñata’ – that can’t be right.
“Tomorrow, Judge Garland will travel to the Hill to begin meeting with senators, one-on-one. I simply ask Republicans in the Senate to give him a fair hearing, and then an up or down vote. If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair. It will mean everything is subject to the most partisan of politics – everything. It will provoke an endless cycle of more tit-for-tat, and make it increasingly impossible for any president, Democrat or Republican, to carry out their constitutional function. The reputation of the Supreme Court will inevitably suffer. Faith in our justice system will inevitably suffer. Our democracy will ultimately suffer, as well.”
But politics remain clearly on display, despite Obama’s plea for fairness.
Former Judiciary Chairman Orrin Hatch, R-Utah, who had been effusive in his praise of Garland when he was first appointed to the bench, is opposing Garland and any other nominee to the court during Obama’s final 11 months in office.
In 1997, Hatch said, “Merrick B. Garland is highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be questioned … His legal experience is equally impressive … Accordingly, I believe Mr. Garland is a fine nominee. I know him personally, I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the court.”
As late as this week, Hatch said, “The president told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him. [Obama] could easily name Merrick Garland, who is a fine man. He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”
But when Obama, true to his word, nominated Garland, Hatch refused to cooperate.
“I think highly of Judge Garland. But his nomination doesn’t in any way change current circumstances,” Hatch said. “I remain convinced that the best way for the Senate to do its job is to conduct the confirmation process after this toxic presidential election season is over.”
A graduate of Harvard College and Harvard Law School, Garland has clerked for Justice William Brennan Jr. and, like Chief Justice John Roberts, Judge Henry J. Friendly. He voted against granting the District of Columbia statehood. As a federal prosecutor, he supervised the investigation and prosecutions in the Oklahoma City bombing case in 1995, as well as the case against “Unabomber” Ted Kaczynski.
When Garland was under consideration for the court vacancy eventually filled by Elena Kagan in 2010, Charlie Savage wrote in The New York Times, “Those prosecutorial experiences helped shape his approach to the law. While he is known as a centrist or a moderate liberal in most areas, his rulings suggest that he could be more of a center-right justice in matters of criminal law.”
Of no comfort to progressives is the observation of Fox News legal analyst Andrew Napolitono: “Judge Garland is the most conservative nominee by a Democratic president in the modern era.”
According to NPR’s Nina Totenberg, Republicans “sent some sort of a back channel message to the White House” notifying Obama that they would confirm Garland in a lame duck session if a Democrat, presumably Hillary Clinton, is elected in November.
If true, Republicans, who only support those they consider hardline conservatives to the court, may win even while losing.
If they confirm Garland, that would deny Clinton an opportunity to immediately appoint a more reliably liberal judge to the Supreme Court and, at 63 years old, Garland won’t have an opportunity to serve as long as conservatives who were deliberately appointed at a younger age.
For example, Clarence Thomas was appointed to the court at the age of 43, Chief Justice John G. Roberts, Jr., 50, and Anthony Kennedy, 51. The late Antonin Scalia, who served nearly 30 years on the court, was appointed to the court at 50.
Until now, Democrats seem to be following the trend of appointing younger justices, including Elena Kagan at 50 and Sonia Sotomayor at 54.
To confirm Garland during a lame-duck session of Congress in November – two months before the new president is sworn in – would undercut the Republicans’ central argument that the seat should be filled by the next occupant of the White House, not by a president during his last year in office. The decision to confirm Garland would be made by some senators who would have been defeated by the time of the vote.
That’s not the only inconsistency in the strategy adopted by Republicans. A group of respected scholars have sent a letter to Obama rebutting many of the Republican talking points.
“… it is standard practice when a vacancy occurs on the Supreme Court to have a president, whatever the stage in his term, to nominate a successor and have the Senate consider it,” the scholars stated. “And standard practice (with limited exception) has been for the Senate, after hearings and deliberation, to confirm the president’s choice, regardless of party control, when that choice is deemed acceptable to a Senate majority. The most recent example, of course, is Justice Anthony Kennedy, confirmed by a Senate with a Democratic Party majority in February of 1988, during President Ronald Reagan’s last year.”
The letter continued, “The claims of an eighty-year precedent by Republican Senate leaders are artfully phrased deliberately to exclude the current situation, which itself is new: it is rare for a justice to die in office, and even more rare for that to happen in a presidential election year. History, however, is replete with instances where a vacancy on the Supreme Court was filled during a presidential election year. In 1912, a nominee of President Taft was confirmed to fill the vacancy created by the death of John Marshall Harlan; in 1916, Woodrow Wilson had two nominees confirmed by the Senate; in 1932, President Hoover had a nominee confirmed after Oliver Wendell Holmes retired; FDR had another vacancy filled with confirmation by the Senate in 1940.
“President Eisenhower picked William Brennan in 1956 to fill a vacancy and used his recess appointment power to install Brennan, who was subsequently confirmed by a Senate controlled by Democrats in 1957. It is important to note that there was no objection to Eisenhower’s use of the recess appointment – there was instead a widespread recognition that it was bad to have a Supreme Court operate for months without its full complement of nine members.”