Judge Garland's Nomination

Judge Merrick Garland should be confirmed as a justice of the Supreme Court. But, in this bizarre election year, with the angry base of the GOP hijacking the entire party, it is doubtful that Senate Republicans will further risk the wrath of their base and they have pledged not to even hold a hearing on the nomination, still less a vote.

By all accounts, Judge Garland is eminently qualified. By most accounts, he was not the choice of those in the White House who wanted to turn the nomination into a campaign tactic. And, interestingly, according to this report in Politico, in selecting Garland, President Obama did not go with a liberal champion, but with a centrist judge known not for his ideological edge but for the carefulness of his rulings. When Cecile Richards, President of Planned Parenthood offers the most tepid endorsement possible – “Judge Garland seems like a responsible and qualified nominee. There’s a lot that we don’t know about his judicial approach,” she told reporters – you know that Obama made the kind of nomination many Republicans would normally support.

But, what counts for normal anymore? Within minutes of the announcement, Senate Minority Leader Mitch McConnell addressed his colleagues, arguing that the Senate should not consider the nomination because the American people deserve a say in this consequential selection. Of course, the American people have already had a say in the selection, when they re-elected President Obama by some five million votes in 2012. True, the American people, more precisely one-third of them, handed control of the Senate to the Republicans two years later. And, no one contests the right of the Senate to withhold its consent to this, or any, nomination. But, they should think twice. Judge Garland is a full decade older than most Supreme Court nominees and he is apparently no flaming liberal. They could do worse.

It is painful watching the attempts by Republicans to dress up their opposition in any kind of principled manner. This is pure politics. Besides, how could we tell what the voters think about this nominee, or any nominee, from the election results? Voters cast their ballots for a variety of reasons, and for some activists on key issues, control of the Court is indeed a motivating issue, but it is rarely at the top of the list of concerns for most voters. 

The reason the GOP is so exercised about this nomination is that Obama is not replacing a liberal jurist, but the late Antonin Scalia. The court is bound to tilt more to the center with almost any nominee seeing as Attila the Hun is not available. Scalia was not only a reliable conservative vote, he was a champion for conservatives wedded to certain ideas about constitutional interpretation. His dissents were blistering and became talking points for conservatives, shifting the political atmosphere and discussion to the right. Even if we had a Republican nominating Scalia’s replacement, the GOP base would be disappointed in the result. Scalia, no matter what you thought of him, was one of a kind.

To be clear, the politicization of Supreme Court nominations did not begin this morning in the Rose Garden and there is plenty of blame to go around, equally apportioned among both parties. President Obama opposed the nominations of both Chief Justice John Roberts and supported a filibuster against Associate Justice Samuel Alito. In his remarks to the Senate, Sen. McConnell cited comments by former Judiciary Committee Chairman, now Vice President, Joe Biden to the effect that nominations in an election year should be put on hold. McConnell called it “the Biden Rule.” Biden also played a lead role in the opposition to the nomination of Judge Robert Bork, which was not Biden’s finest hour. I would have voted against Bork’s nomination, to be sure, but the man did not have to be trashed as he was by the Democrats at the time.

There was a time when Supreme Court nominations were relatively non-controversial, but after the Court began to assume a larger role in American political life, rendering decisions on civil rights and abortion rights and corporate rights and gun rights, all of which had clear and direct impacts on our political process, the Court has become a lightning rod, especially on those issues which occasion the deepest passions among many voters. When the federal government played less of a role in the life of society, and when the Supreme Court was, as the founding fathers intended, the least powerful branch of the federal government, politics could be mostly kept at bay. Not anymore.

I do not see how we get the politics out of Supreme Court nominations anymore than I see how we will ever reform, or better repeal, the anti-democratic filibuster. Whichever party is in the minority champions the filibuster as a necessary check against majoritarian tyranny but, once in control of the chamber again, they denounce it as obstructionism. Politicians are all hypocrites when it comes to principles, with a few notable exceptions. Sen. Lindsay Graham famously argues for any president’s right to propose nominations to the Senate and to have them confirmed, but even he is wobbling on this appointment.

The GOP is playing a bad game but it is a smart game. There is a larger percentage of their base that cares passionately about the Supreme Court than there is swing or independent voters who will take it out on the GOP in the fall because they refuse to give Garland a hearing. Indeed, none of us knows what issues, if any, will shape the November election: As I argued the other day, it could be entirely driven by personality or it could be influenced by events like an economic downturn or a terrorist attack. People whose partisan allegiances are up for grabs are not likely to be the kinds of voters who vote based on Supreme Court nominees. So, the GOP opposition is smart. Unless, of course, you take seriously your oath to defend the Constitution, in which case both parties need to grow up and set down rules by which they will both abide for handling Supreme Court, and other, nominations. When pigs fly.