The ball is now in the GOP Senate’s court: President Obama has nominated Merrick Garland, chief judge of the D.C. Circuit, for Supreme Court justice. After President Clinton nominated Garland for the D.C. Circuit Court in 1995, seven current GOP senators were among the 32 who voted to confirm him with a 76-23 vote after waiting for 19 months. A Harvard Law School graduate, Garland clerked for two Eisenhower appointees, Justice William Brennan and Judge Henry J. Friendly. At 63, Garland is the oldest nominee for the court since Lewis Powell (1971) who was 64 when appointed. Garland would be the fourth Jewish justice; the other five are Roman Catholic.
In 2003, Garland voted to bar Guantanamo detainees from seeking relief in U.S. Courts, a ruling reversed by the Supreme Court. In 2010, SCOTUSblog’s Tom Goldstein noted that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” along with seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise an argument relating to sentencing on remand,” in his tenure on the DC Circuit. An extensive blog delineates other Garland decisions when he was being considered for the high court in 2010.
Ultra-conservative Orrin Hatch (R-UT) called Garland an acceptable nominee just last week. In 2010, Hatch called Garland “terrific” and said he could be confirmed “virtually unanimously,” yet Hatch now says that he won’t even meet with Garland although he has “a high opinion of him.”
Despite his background of valuing Senate traditions, Chuck Grassley (R-IA), chair of the Judiciary Committee, is sticking to his guns in denying Garland a meeting. His intransigence is already costing him as Patty Judge, a Democrat, is challenging Grassley in his re-election this year. Although he voted against Garland for the D.C. Circuit in 1997, his only reason was that the court already had too many judges.
Trying to deflate some of the criticism coming from their constituents, Republican senators have established a task force to orchestrate attack ads, petitions and media outreach with the objective of to bolstering their denying consideration of Obama’s nominee.The National Republican Senate Committee calls Garland “a liberal” and “an activist” although lack of proof.
Senators up for re-election are getting nervous about their leadership’s adamant refusal to even consider a nominee. Pat Toomey (R-PA) said that he would consider Garland but only next year if the new president nominates him. Mark Kirk (R-IL) claimed that he will “assess Judge Merrick Garland based on his record and qualifications.” Kelly Ayotte (R-NH) plans to meet with Garland but follows the party line of opposing any confirmation, waiting until the “people speak” in the November election. She may be fighting a Tea Party candidate in her primary on October 13, 2016. Ron Johnson (WI) said earlier than not voting is an action so he plans to vote—presumably against the president’s nominee.
Although she’s not up for re-election, Sen. Susan Collins (R-ME) said that she would meet with Garland because “I view it as my job.” (The two women senators from Maine have been the most reasonable during the past decade.) Sen. Jeff Flake (R-AZ) will do the same. Collins and Hatch voted in favor of Garland’s appointment to the D.C. Circuit along with other GOP senators Dan Coats (IN), Thad Cochran (MS), Jim Inhofe (OK), John McCain (AZ), and Pat Roberts (KS).
As a member of Clinton’s Justice Department, Garland effectively supervised investigations into such bombings as those of the Unabomber, Oklahoma City, Atlanta Olympics bombings. Supreme Court expert Nina Totenberg wrote that Garland has “a reputation for collegiality and meticulous legal reasoning.” He has “more federal judicial experience than any other Supreme Court nominee in history,” a White House official said. “No one is better suited to immediately serve on the Supreme Court.” National Organization for Women President Terry O’Neill praised Garland for “a rigorous intellect, impeccable credentials, and a record of excellence” but said his record on women’s rights was “more or less a blank slate.”
The media will be filled with lies about Garland and his nomination, but here are some facts.
Senate Republicans Routinely Obstruct Noncontroversial, Qualified Nominees: The reform of filibuster rules in 2013 came after GOP senators held up three highly qualified nominees for the D.C. Court of Appeals, appointments that Republicans admitted were highly qualified. These three were on top of 17 others being blocked or who withdrew, causing a logjam throughout the judiciary branch with positions unfilled back for at least six prior years. The travesty received less attention because none of them was for the Supreme Court.
Republicans Are Falsely Referring to Filling Court Vacancies as “Court-packing”: That term is defined as a president’s attempt to increase the number of seats on a court, not fill a vacancy which is basic governance. The threat of court-packing came from FDR’s desire to expand the number of justices to tilt the Supreme Court in his favor. President Obama is following the constitutional mandate to appoint nominees for vacancies.
Republicans Are Worse than Democrats in Obstructing Presidential Nominees: Obstructionist behavior to President Obama’s nominees is unprecedented as half of all filibusters of executive nominees happened during his terms. Earlier, GOP senators blocked the first director of the Consumer Financial Protection Bureau because they didn’t like the law. Eighteen months ago, PolitiFact noted that 68 nominees had been blocked before President Obama’s election and 79 in less than five years of his two terms. Last year, the Senate confirmed only 11 federal judicial nominees. In at least one case, the same GOP senator—Marco Rubio—who recommended a nominee blocked a hearing for her. The seat was vacant for almost two years, and judges had more than 600 cases during 18 months because of Rubio’s refusal to complete his recommendation.
GOP Obstructionism Has Negative Consequences: Contrary to the position that filling vacancies has no urgency, the practice makes the court system less able to address concerns of people in the U.S. and deny them justice.
Republicans who refuse to give Garland even a nod will show themselves even more ideological in selecting a justice, an action that they have highly criticized in the past. Moderate to the point of being conservative, he’s the chief judge of the second most important court in the nation. The Judicial Crisis Network, largely funded by the Koch brothers, has $2 million to spend on ads, but they may not be able to ruin Garland’s career the way that they can for younger nominees. The D.C. Circuit does not normally deal with such social issues as abortion and LGBT rights, but JCN is already salivating over Garland’s vote to rehear a case over D.C.’s tough gun restrictions.
Garland’s nomination may put Republicans into a no-win situation. Sixty-three percent of people in the U.S. believe that the Senate should hold hearings on President Obama’s nominee to replace Scalia as opposed to 32 percent who don’t want this to happen. Never before has the Senate refused to consider any presidential nominee at all simply because it was an election year. Rejecting Garland sight unseen shows that the nomination is not about the person appointed but about the person doing the appointing.
If Garland appears as a centrist jurist suitable for both parties, GOP opposition makes them look even more obstructionist. Yet caving in on their past irrational promises can alienate the core Tea Party members who the establishment has courted for almost a decade. All GOP senators have left is the media as they hope that the nominee isn’t the even-handed, excellent judge that they have claimed he was in the past.
The November election could change the GOP position of refusing Garland if a the new president is a Democrat. In such a case, Republican senators may confirm him during President Obama’s lame-duck session to avoid the possibility of a more liberal justice. Jeff Flake, who sits on the Judiciary Committee, said, “If the election doesn’t go the way Republicans want it, there will be a lot of people open to that I’m sure.”
In nominating Garland, President Obama contacted every senator. He did his job; now it’s time for the senators to do theirs. The best thing about the nomination? The media may move some of its focus away from Donald Trump.