Senate Republicans would do well to reconsider before refusing to even consider the nomination of Merrick B. Garland to replace Antonin Scalia on the Supreme Court.
Garland is considered a centrist who was confirmed to the U.S. Court of Appeals in a bipartisan vote. But no matter who the president chose to put forth, it is the duty and obligation of the Senate to consider the nominee, just as it was the duty and obligation of the president to put forth a name.
Obama has done his part. Senate Republicans have pledged not to do theirs, refusing to even meet with any nominee put forth by the lame-duck Democratic president. Republicans are on thin constitutional ice here, made no less so by the likelihood that Democrats would do the same thing if the roles were reversed. Senators run the risk of paying a political price as obstructionists.
The vacancy was created by Scalia’s untimely death in February. Losing a staunchly conservative voice on the Supreme Court threatens the court’s conservative tilt, making the next justice all the more important. Except that in an attempt to blunt some of the opposition, Obama put forth a nominee whose reputation among both parties should make him hard to dismiss out of hand.
Senate Majority Leader Mitch McConnell, R-Ky., immediately repeated his opposition to considering any nomination until next year, when Republicans hope to see a member of their party in the White House.
While that is possible, Senate Republicans might want to consider the possibility of another Democrat in the White House who may not be inclined to nominate someone as relatively palatable to the right as Garland.
And the nominee appears equipped for a fight. His mid-1990s confirmation to the Court of Appeals for the District of Columbia Circuit was held up for two years by Sen. Charles E. Grassley, R-Iowa, “who argued at the time that the vacancy should not be filled,” according to the New York Times.
Grassley, now the chairman of the Senate Judiciary Committee, finally relented and allowed a vote on the nomination, which racked up 32 Republican votes. Grassley will again be a nemesis for Garland.
Garland’s credentials are not the issue. He has nearly two decades on the Court of Appeals. He is 63, considered a bit senior for a Supreme Court nominee. Before becoming a judge he worked in the Justice Department, where he worked on the Oklahoma City bombing case.
White House officials make the point that Garland was confirmed to his current post in 1997 with support of seven Republicans still in the Senate, including Utah’s Orrin G. Hatch, a member of the Senate Judiciary Committee. Hatch is said to have called Garland a “consensus nominee” for the Supreme Court back in 2010 when the president interviewed Garland for the court, but chose Elena Kagan instead.
This is not to say that Garland should be confirmed by the Senate. His credentials appear solid, but his record on the Court of Appeals needs a thorough airing. That is the job, indeed the duty, of the Senate. After a fair hearing senators can vote for or against the nomination.
It may be politically unpalatable for Republicans to consider a Democratic nominee to replace Scalia, but their obligation is clear: Garland deserves a vote.