The irony is that the system is working, if Republicans in the Senate would only show a little more respect for the American Constitution.
President Barack Obama on Wednesday nominated an ideologically centrist jurist with impeccable credentials to fill a vacancy on the Supreme Court, knowing a more liberal nominee would stand no chance of confirmation by the Republican-controlled Senate. This is precisely how our government’s celebrated system of checks and balances is supposed to moderate extremism. Coming from a Democratic president, Merrick Garland is as good a nominee as the Republicans can ever expect to get.
But, instead, Republican Senate leaders again on Wednesday said they will not hold confirmation hearings — to hell with the letter and spirit of the Constitution — while counting down the remaining days of Obama’s presidency. As of Thursday, that would be 310 days. Add that to the 33 days since Justice Antonin Scalia died, and you can see the problem:
The Supreme Court, our nation’s vital third branch of government, will not be returned to full strength for almost a year. If then.
Do your job, senators. The president put forth a nominee, as required by the Constitution he took an oath to uphold. Hold hearings to consider Garland’s suitability and vote to confirm or reject. You took an oath, too. The Constitution makes no exceptions for election years.
Garland, chief judge for the federal appeals court for the District of Columbia Circuit, previously has been praised by Republican leaders. As recently as last week, Sen. Orrin Hatch of Utah, a former chairman of the Senate Judiciary Committee, cited Garland as the kind of “fine man” whom the president “could easily name.” But Hatch predicted, wrongly, that Obama would nominate an obvious liberal just to score political points.
Obama has scored more points simply by nominating a terrific candidate who might in normal times fly through the confirmation process. The refusal of Senate Republicans to even consider Garland’s credentials looks all the more unreasonable.
Garland, 63, grew up in north suburban Lincolnwood. That fact jumps out for us. He’s a hometown boy! We admit to a little local pride. In all other ways, Garland fits the mold of superb Supreme Court nominees of the past who have drawn strong bipartisan support.
He is a graduate of Harvard College and Harvard Law School. He clerked for two Supreme Court justices appointed by Republican President Dwight D. Eisenhower. As an assistant United States attorney, he oversaw the convictions of Oklahoma City bombers Timothy McVeigh and Terry Nichols, as well as the investigation of Unabomber Ted Kaczynski.
Garland was confirmed to the federal bench in the D.C. Circuit in 1997 with bipartisan support. And while, as a Supreme Court justice, he more likely would vote with the court’s left flank, he is nobody’s sure thing. As an appellate judge, points out Tom Goldstein of SCOTUSBlog, he joined an opinion that effectively prohibited Guantanamo Bay detainees from being granted civil trials on the American mainland. He has voted only rarely in favor of criminal defendants appealing their convictions.
Senate Majority Leader Mitch McConnell insisted Wednesday that the issue is not Garland’s suitability, but rather who should decide his suitability. The court vacancy, he said should be filled by the next president.
“The American people, he said, “should have a say in the court’s direction.”
The American people have no say now, of course, because Obama was elected by nobody.
McConnell also griped that he’s just following what he called the “Biden Rule.” He was referring to when Joe Biden in 1992, as chairman of the Senate Judiciary Committee, asked President George H.W. Bush to hold off on making a court nomination until after the election. McConnell failed to mention that Biden was speaking only hypothetically — there was no nominee — and added that if Bush did nominate somebody, they’d work something out.
And, frankly, Biden was wrong, too.
Republican obstructionists intend to count the days until there is a new president.
The rest of us, across the political spectrum, will count the days the Supreme Court can’t do its job right because the Senate won’t do its job.
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