Article 2 of the United States Constitution states the following:
“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Let’s continue the history lesson with some more recent events:
- Antonin Scalia died unexpectedly on February 13, 2016, 269 days before the general election was held on November 8, 2016 and 342 days before the next Presidential inauguration held on January 20, 2017.
- Merrick Garland was nominated by the 44th President Barack Obama on March 16, 2016, 2,612 days into Obama’s term as President, 237 days before the general election was held on November 8, 2016, and 310 days before the next Presidential Inauguration held on January 20, 2017.
- For the duration of the 293 days remaining in the 114th Congress (which ended on January 3, 2017), the Senate, led by Majority Leader Mitch McConnell, chose to hold exactly zero hearings or votes on Garland’s nomination. But in 1997, when Garland was nominated by President Bill Clinton for a United States Court of Appeals judgeship, here is what some Republicans thought of Garland’s qualifications:
- Orrin Hatch (R – Utah): “Merrick B. Garland is highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be questioned… His legal experience is equally impressive… Accordingly, I believe Mr. Garland is a fine nominee. I know him personally, I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the court. I believe he is not only a fine nominee, but is as good as Republicans can expect from this administration. In fact, I would place him at the top of the list.”
- Jeff Sessions (R – Alabama and current U.S. Attorney General): “He has a high position with the Department of Justice and, by all accounts, does a good job there. There will be a number of judgeship vacancies in the D.C. trial judges. He has been a trial lawyer. He would be a good person to fill one of those. I would feel comfortable supporting him for another judgeship.”
- Jon Kyl (R – Arizona): “…there is no question, he is qualified to serve on the court.”
Even the American Bar Association rated Garland as ‘unanimously well-qualified’ to sit on the Supreme Court. So, what changed? And what is the next step with the current nominee of Neil Gorsuch?
Are Democratic Senators now within their rights to say something like “Trump lost the popular vote by over 3 million votes, so we will do everything in our power to block this nomination” (sort of a similar argument the Republicans made when waiting for ‘the will of the people’ on election day) or “Garland should minimally get an up/down vote so all Senators are on record before beginning the Gorsuch confirmation process”? In my opinion, no they are not. That would be stooping to the level of hypocrisy I often rail against when I talk about Republican stances.
Make no mistake, to not even consider Merrick Garland was a tremendous breach of responsibility by the Republicans of the United States Senate in general and Mitch McConnell in particular. Barack Obama was the duly elected President and it was his right to nominate a successor to Antonin Scalia. Had Scalia died 44 days earlier on December 31, 2015, would the Republican argument been the same? What if two other Justices had unexpectedly passed, leaving the court with six members? Would the GOP leadership also refuse to offer any sort of ‘advise and consent’ for those nominees? I don’t know the answer to those questions, but I have a gut feeling.
With regards to Gorsuch, since he would be replacing the staunchly conservative Scalia, the overall balance of the Supreme Court would not be any different than it has been for the last several years. So I hope the Democrats do not go full-Monty and force the Republicans to take a nuclear option. That is different from giving them a free ride, however. Democrats should, at every opportunity during the confirmation hearings and every time they are in front of a microphone, express their discontent and amazement at the blatant Republican obstruction that happened with the Garland nomination.
I hope Democrats save – and use – the nuclear option battle for any subsequent nominee that Trump may be asked to make in the future. In the meantime, I will set my sights on the midterm elections in 2018 (I’m looking at you Ted Cruz) and I will seriously consider sending Justice Ruth Bader Ginsberg a juicer and recipes for smoothies aiding with health and longevity.