Time is Running Out to Confirm Judge Garland

Posted on Categories Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court

Merrick_Garland_speaks_at_his_Supreme_Court_nomination_with_President_ObamaThe unprecedented, and unconstitutional, obstruction of Supreme Court nominee Judge Merrick Garland is just one of many recent missteps by Republican leaders.  For example, mainstream Republican presidential candidates strategically withheld their attacks on Donald Trump during the primary season, in the hopes that he would be an easy target to topple once the field sorted out.  This was a major blunder.  More broadly, the decision of Republican leaders in Congress to make the repeal of the Affordable Care Act the centerpiece of their legislative agenda, at a time when Republicans lacked a veto-proof majority, was an empty gesture which merely fueled anger among their Party’s base and ultimately made Trump possible. Both of these decisions were political calculations that seemed clever at the time, but which turned out to have disastrous consequences for the Republican Party.   However, the unjustified refusal to hold hearings on a highly-regarded and moderate Supreme Court nominee has the potential to dwarf every other political miscalculation that Republican leaders have made over the last eight years.

First of all, it is important to recognize that Judge Merrick Garland is a laudable nominee for the U.S. Supreme Court.  He is a former federal prosecutor, a highly respected Judge on the U.S. Court of Appeals for the District of Columbia, and someone identified by Senator Orrin Hatch and other prominent Republicans (prior to his nomination) as the type of judge who would receive bi-partisan support in Congress.  Post-nomination arguments raised about Judge Garland’s supposed lack of respect for the Second Amendment are not justified by his actual opinions and, in reality, are merely a fig leaf contrived to rationalize opposition to the nomination by Republican lawmakers.

In addition, the refusal of the Senate to take up the nomination is a clear violation of the Constitution.  The drafters of that document gave the sitting President the power of initiative in naming nominees to the Supreme Court.  The Senate was given the power to reject individual nominees, but this is a subsidiary power to the President’s power to select the person to be nominated.  The Framers recognized that after rejecting successive individuals the Senate would face increasing pressure to eventually accept a presidential nominee.  This was intentional, because the Framers considered the Appointment Power to reside primarily in the Executive Branch.

The actions of the current Senate leadership are an attempt to take away President Obama’s power of initiative and transfer it elsewhere.  Whether the Republican leadership believes that they themselves possess the power to identify acceptable nominees, or whether the Republican leadership is attempting to transfer that power to a future president, it makes no difference.  In either event, their actions are contrary to a written Constitution which places the power to nominate in the hands of the sitting president: President Obama.

However, this is more than a mere theoretical debate over constitutional principles.  The ongoing vacancy on the Supreme Court is causing real harm to the nation.  More than anything else, the value of the Supreme Court to our constitutional system is that it serves as the final expositor of the meaning of the Constitution.  Every day, constitutional rulings are handed down by lower court judges in our country – over 1,000 federal judges and over 10,000 state court judges have the power to hear constitutional claims.  Without a functioning Supreme Court to provide uniformity and finality, citizens are faced with a bewildering patchwork of decisions governing our most basic civil liberties.  In a nation of laws, it goes without saying that the law should be clear and predictable, rather than diverse and chaotic.

Meanwhile, time is running out for the Republican leadership in the Senate.  There are only about 20 days on the legislative calendar before the presidential election in November.  This is enough time to schedule and hold hearings and a vote on the Garland nomination, although just barely.

Waiting to consider the nomination until after the election, during the “lame duck” session that will coincide with the final months of the Obama presidency, would not be wise.  Such a tactic would only underscore the hypocrisy underlining Republican obstruction up until this point.  The Republicans have justified their obstruction on the basis of a mythical foundational principle: that Supreme Court vacancies in the final year of a presidential term should be filled by a new president with a mandate from the people.  To confirm President Obama’s nominee during a lame duck session of Congress is directly contrary to the very same “principle” that Republicans have used for months to mask their partisan motives.  Even hard-core Republican voters would question a retreat of this magnitude.

To wait until the next president is sworn in, and hope that a President Hillary Clinton would re-submit Judge Garland’s name for the empty seat, carries substantial risk as well.  It is true that congressional leaders in the Democratic Party are currently reaching out to candidate Clinton and urging her to re-submit Judge Garland’s name if she wins the election in November.  And there is some logic to the argument that avoiding a messy confirmation fight in the new President’s first year – and extending an olive branch to Republicans – might foster a feeling of bi-partisan cooperation in Washington.

However, rank and file Democrats from the Bernie Sanders/Elizabeth Warren wing of the Democratic Party will push hard for a younger and more progressive appointee to the Supreme Court — especially if candidate Clinton scores a decisive win in November.  Their argument will be that it is counter-productive to reward Republican obstructionism by re-nominating Judge Garland, because such a move will only encourage similar tactics in the future.  Moreover, after the Republican Party has demonstrated by its own actions that obtaining a Supreme Court majority is their highest possible priority, it seems odd that the Democrats would treat this same prize in so cavalier fashion as to appoint a 64 year old to the Court.  It is a long time until the next Presidential Inauguration, and there is a real risk that pressure will grow for a President Clinton to nominate a different judge who has the potential to sit on the Supreme Court for three decades or more.

Considering their current options, the Republican leadership in the Senate would be wise to act on Judge Garland’s nomination before the November election.  Such a move would allow them to obtain a moderate voice on the Court for the next twenty years, at the cost of admitting that their former opposition to any Obama nominee was ill-considered.  The alternative is to risk everything on the hope that either Donald Trump will win the election or that Hillary Clinton will re-nominate Judge Garland in a spirit of good will.  Given their past track record on political maneuvers, this might be the time for Republicans to take the safer bet.

2 thoughts on “Time is Running Out to Confirm Judge Garland”

  1. Do you think the risk of “caving” to Mr. Obama’s nomination of Mr. Garland is worth the risk of inflaming hardcore anti-Obama sentiment? If the Republicans confirm Mr. Garland, I don’t think it is too far outside of the realm of imagination for Mr. Trump (and his dwindling poll numbers) to use that as a call to violence. Might the safer bet for all of us rest on continued Republican intransigence?

  2. Professor Noah Feldman:

    If Hillary Clinton wins in November, will the lame-duck Republican Senate confirm Judge Merrick Garland to the U.S. Supreme Court? Last week, Clinton said she would look for diversity and wouldn’t feel bound to renominate Garland, which in theory should give Republican senators more reason to confirm Garland, before Clinton can nominate a more liberal candidate.

    Yet a careful analysis of Republican senators’ incentives in the case of a Democratic win in November points the other way. If Republicans lose the presidency, the party will enter an intense period of self-reflection and disarray. And if they also lose the Senate, the disarray will be greater still.

    Under those conditions, it seems most likely that Republican senators wouldn’t want the final act of their majority session to be acquiescence to the judicial candidate nominated by President Barack Obama. Instead, looking to future primary challenges, they’ll have reason to reject Garland by denying him a vote — even if that may lead to a more liberal Supreme Court in the long run.

    https://www.bloomberg.com/view/articles/2016-09-19/merrick-garland-shouldn-t-get-supreme-court-hopes-up

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