Republicans have to be awfully confident of retaking the White House in this fall’s election before they preemptively shoot down President Barack Obama’s nominee to the Supreme Court.
Merrick Garland, a federal appeals court judge with indisputable credentials and a reputation as a centrist, is as good as the Republican Senate can expect from a Democratic president. Actually, he’s much better than they expected. Sen. Orin Hatch, chair of the Judiciary Committee, just last week said Garland was the type of nominee Obama should submit, but predicted he wouldn’t.
Well, on Wednesday he did. And that puts the GOP-controlled Senate in a tough spot.
Majority Leader Mitch McConnell backed himself into a corner immediately after the death last month of Justice Antonin Scalia by declaring the Senate would not consider a nominee from a lame-duck president and urging Obama to let the next president make the appointment.
No president would agree to that and, of course, Obama didn’t. McConnell on Wednesday reaffirmed his vow not to give any nominee a hearing in the Senate, saying “the decision the Senate made weeks ago remains about a principle, not a person.”
That disclaimer was in response to Garland’s obviously robust qualifications. As chief judge of the D.C. circuit, Merrick gained a reputation as an intelligent and mostly moderate jurist with the respect of his peers on both sides of the political divide.
“He’s a judge’s judge,” said Detroit Federal District Judge Gerald R. Rosen, pondering the nomination rather than the political context of the appointment. “Garland is unquestionably among the most highly qualified judges in our nation to serve on our highest court. He is widely respected throughout the federal judiciary, well-known for his attempt to follow the law as best as he can ascertain it.”
A former prosecutor, Garland is known both for his collegiality on the court and his meticulous legal reasoning. He is described as being most similar in his approach to the law to Chief Justice John Roberts, and could become an independent-minded figure on the court, rather than a knee-jerk vote for the liberal bloc. And he’s also 63 years old, nearly two decades older than most recent appointees when they took the bench, meaning his length of service will be much shorter.
Garland’s nomination seems designed by Obama to make it as difficult as possible for Republicans to fulfill their pledge to block an appointment until after a new president is sworn in.
The principle McConnell referred to is the so-called Biden Rule, which isn’t a rule at all, and even if it were, was never imposed. The majority leader infers it from a pledge by Vice President Joe Biden, then chair of the Judiciary Committee, to block President George W. Bush from naming a justice in his final year. Biden was backed by Sens. Harry Reid, Chuck Schumer and even Obama himself.
But the issue never materialized, since no vacancies occurred on the court, although there’s little doubt Democrats would have followed through on the pledge.
Still, tit for tat is not a winning argument for McConnell. If voters perceive Republicans as blocking a qualified candidate out of spite, it could hurt those senators who are already facing tough re-election fights.
And with Donald Trump on a path to the GOP presidential nomination, McConnell and his fellow Republican senators must make a careful calculation.
They must know that if nominated, Trump is a long bet to win in November, and his presence on the ballot could take out Republican congressional candidates.
If Hillary Clinton is the next president, and if she enjoys a Democratic Senate, her nominee to the court will almost certainly be younger, more liberal and less palatable to conservatives than Merrick Garland.
McConnell should bow to the qualifications of this nominee, give him a hearing and judge his appointment on the merits, not on politics.