In the weeks following the sudden death of Supreme Court Justice Antonin Scalia, the debate focused on whether or not President Obama should nominate his successor.
In the eyes of the most Republicans politicians, with a presidential election only nine months away, the decision regarding whom to nominate was one to be left solely to the next occupant of the White House, while Obama and his fellow Democrats argued that when the U.S. Constitution delineated the responsibility of a president to nominate a high court justice, it didn’t differentiate between a newly elected Chief Executive or one who is a lame duck.
On Wednesday, President Obama made this debate moot, when he nominated appeals court Judge Merrick Garland.
Ironically, in choosing the broadly respected judge, a former prosecutor who is considered a centrist, Obama disappointed politicians on both sides of the aisle. Liberal groups had hoped that he would pick someone with strong left-wing credentials, though this would have almost guaranteed that the nominee would not have been confirmed. Conservatives Republicans would have preferred a more controversial candidate as well, someone who they could’ve flatly rejected without being seen as obstructionist.
Instead, Obama illustrated that after seven years on the job, he is no novice to game of politics.
Senate Majority Leader Mitch McConnell wasted no time in making his position clear. In public remarks, and then on a phone call to Judge Garland, the GOP leader insisted that the Senate won’t even consider the nomination. He declined even to meet with Garland, with McConnell’s spokesman explaining the Majority Leader felt it was more considerate to talk by phone and not subject him to “more unnecessary political routines orchestrated by the White House.”
Earlier, in a speech on the Senate floor, McConnell explained that the view of the GOP is to “give the people a voice in the filling of this vacancy.”
This view is shared by Senate Judiciary Committee Chairman Charles Grassley, who shortly after Obama announced his choice, said “a lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics.”
While the deep reluctance of the Republicans to allow President Obama to be the one to choose the successor of one of the most conservative Justices in recent times is very understandable, the arguments set forth as to why the Senate shouldn’t even consider the nomination are tenuous at best.
For one thing, the American people have already let their voice be heard. When the American people voted to give President Obama another term, they knew it would last four years — and that he would get to nominate any High Court vacancy that would occur during that time frame. Equally important, when voters in 2014 chose to elect enough GOP senators to give that party the majority, they granted the Republican majority to ultimately decide whether or not to confirm whichever nominee Obama would name.
As numerous political observers have indicated, it is far from certain that the Republicans will retain control of the Senate after the November elections. If a Democrat will also win the White House, which is a distinct possibility, the next Supreme Court justice may end up being far more liberal than Garland.
Secondly, it is hard to understand why allowing the full Senate to consider a nomination is tantamount to getting “bogged down in politics,” while refusing to do so isn’t.
There are ample reasons why Republicans would want to vote against a Garland nomination. While predictions of how an individual justice would rule in any specific area have proven to be highly unreliable in the past, experts think that Garland would align with the more liberal members of the Court on issues such as environmental regulation, labor disputes and campaign finance.
At the same time, he isn’t a typical down-the-line liberal either. On areas like criminal defense and national security cases, he’s sided more often with prosecutors. In fact, when Garland’s name was floated for the Supreme Court in the past, it was liberal groups that expressed concerns, citing his decisions supporting the government in disputes over the rights of terror suspects held in Guantanamo Bay.
Garland has a mixed record on religious rights cases, an area that is of particular interest to the Jewish community. Incidentally, so did Justice Scalia, the man he seeks to replace.
It is very possible that despite the high praise some GOP senators gave Garland in the past, after carefully sifting through his long record of legal decisions and subjecting him to the intensive scrutiny given every contemporary Supreme Court nominee, a majority of the Senators would decide that he should not be confirmed.
But that should be a decision the full Senate should make, after letting him try to convince them why he should be nominated.