Much to the chagrin of his more liberal supporters, President Barack Obama once again has made a calm, measured decision on a nomination for a seat on the U.S. Supreme Court. Rather than pick a partisan liberal to incite the Republican Senate, Obama has done something almost surprising in this age of bickering and gridlock. On Wednesday, Obama announced that he is nominating Judge Merrick Garland to fill the vacancy left after the death of Justice Antonin Scalia.
Garland, without question, has outstanding legal credentials, although he must be held to the highest scrutiny — as is customary with any lifetime appointment. He served 18 years on the U.S. Court of Appeals for the District of Columbia Circuit and has more than a decade of experience in private practice. He coordinated the prosecution of the Oklahoma City bombing and Unabomber cases. At the time of his nomination to the D.C. court, the American Bar Association gave Garland a “unanimously well-qualified” rating. His confirmation was both bipartisan and broad in nature. Seven sitting GOP senators voted for Garland’s confirmation to his current post in 1997.
President Obama has done his duty under the Constitution. Now, the U.S. Senate must do its job, to “advise and consent” on the president’s nomination. Senate Majority Leader Mitch McConnell says there will be no hearings or vote and called Garland on Wednesday to say he will not be meeting with him.
With 10 months left to go in President Obama’s final year in office, there is no reason GOP senators should not be forced to do their jobs. Obama can’t make them, however. Even Garland’s sterling credentials likely won’t sway the GOP senators to give him a hearing. Only the people — especially voters in states where GOP senators are running for re-election — can challenge this refusal of elected senators to perform a constitutional duty. Senate Judiciary Chairman Chuck Grassley, running again in Iowa, particularly needs to hear from voters that this obstructionism must not stand.
After all, these GOP stalwarts point to Scalia as an example of a justice who believes in interpreting the Constitution as the framers intended. These “originalists,” as they call themselves, say they value the original meaning of our beloved founding document.
But a refusal to consider a president’s nomination is hardly in keeping with the intent of the Constitution. Article II, Section 2 of the Constitution states clearly that, “[t]he President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … judges of the Supreme Court. … ” There is no asterisks for an exception in an election year.
As Obama said in the Rose Garden while making his nomination announcement,” … it is tempting to make this confirmation process simply an extension of our divided politics, the squabbling that’s going on in the news every day. But to go down that path would be wrong.”
Obama continued: “To suggest that someone who has served his country with honor and dignity, with a distinguished track record of delivering justice for the American people might be treated, as one Republican leader stated, as a political piñata — that can’t be right.”
Offering a hearing and a vote does not mean the GOP will approve the president’s choice. Senators are free to consult their consciences and vote against a particular selection. But, as Alexander Hamilton wrote in the Federalist Papers, “there will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice he may have made.”
Both branches — the executive and legislative — have a role to play, one to nominate another to approve or deny. That approval or denial, however, does not mean the Senate should simply refuse to consider a nomination. That is dereliction of duty.
Over the course of our nation’s history, scholars say, there have been 24 election-year nominees, with 21 of those confirmed. There is no precedent for refusing to consider a nomination outright. That is a fiction created by Republicans who don’t want to lose their conservative majority on the court; if, as they hope, a GOP president takes office in January, the tie-breaking appointment would go to him, rather than President Obama. But only if they delay, delay, delay.
Any delay would have a cost, leaving the nation’s highest court short-handed as it considers important matters of law. Experts figure a delay until the next presidential term could leave only eight justices to consider more than 120 cases; many of those cases would be split along 4-4 lines. When that happens, no uniform law is set for the entire country, a primary responsibility of the Supreme Court.
That’s unnecessary. A presidential term is four, not three years. The president just did his job and made a thoughtful, qualified nomination for the court. Now, it’s up to the Senate to stop playing politics and do its job.