In Choosing Garland, Obama Takes Path of Least Resistance

Judge Merrick Garland

Federal Judge Merrick Garland (center), is applauded by President Barack Obama (right) and Vice President Joe Biden (left) as he is introduced as Obama’s nominee for the Supreme Court during an announcement in the Rose Garden of the White House on March 16. Garland, 63, is the chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, a court whose influence over federal policy and national security matters has made it a proving ground for potential Supreme Court justices. (AP Photo/Pablo Martinez Monsivais)

By nominating Judge Merrick Garland, chief judge of the District of Columbia Circuit Court of Appeals, to the U.S. Supreme Court, President Barack Obama apparently has taken the path of least resistance.

Judge Garland is eminently qualified to serve on the Court. He is known to be a moderate centrist on the Court of Appeals. He was first nominated by President Bill Clinton to the D.C. Circuit in late 1995. A recalcitrant Republican Senate held up confirmation until after the 1996 election for reasons having nothing to do with Judge Garland’s qualifications. After President Clinton was reelected, he nominated Judge Garland once again and he was confirmed, in 1997, by a vote of 76-23.

Judge Garland has apparently been on President Obama’s shortlist for some time, having been passed over when Sonia Sotomayor and Elena Kagan were the president’s eventual nominees. He is 63 years old, which makes him a relatively old nominee, unlikely to match Justice Scalia’s 30-year tenure on the Court. And he looks the part.

He is, in short, probably the most uncontroversial judge the president could possibly have nominated.

Judge Garland is almost certainly not the first choice of the president’s political base, who would no doubt have preferred someone with more obvious and reliable progressive credentials. No such person, if reports are to be believed, even made it onto the president’s shortlist. But there is no legitimate reason for Judge Garland not to be confirmed.

He will not be. While President Obama has chosen the path of least resistance, the Republican leadership in the Senate has chosen the path of most resistance. Sen. Mitch McConnell, majority leader said, within minutes of the official announcement that Justice Antonin Scalia had died, that the Senate would not consider a nominee in an election year. He reiterated that position within minutes of the nomination being announced, referring to it, without apparent irony, as “the Biden Rule,” then-Sen. Joe Biden having taken a similar position when he was chair of the Judiciary Committee.

Sen. Charles Grassley, current chair of the Judiciary Committee, which, if hearings on the nomination were to be held, would be the committee to conduct those hearings, has indicated that no such hearings will be held and that members of the committee will not even meet with the nominee, whoever it might be. He, too, reiterated that position shortly after the nomination was announced.

History repeats itself; confirmation of Judge Garland will be held up for reasons having nothing to do with his qualifications, as happened to him in 1996.

While the process of nomination and confirmation of Supreme Court justices is a political one, assigned by our Constitution to the political branches, it does not seem to be a good-faith exercise of the Senate’s advice-and-consent role simply to ignore a presidential nominee. A president with more than nine months left in his second term does not give up his constitutional prerogatives; nor is he relieved of his constitutional duties. The Senate, too, has constitutional duties; but it also has the prerogative to reject any nominee, out of hand. Whether that recalcitrant position has political consequences remains to be seen.

The Senate Republicans will not budge before the November election. Should the Democratic nominee for president prevail in November, the lame-duck Senate, still controlled by Republicans, would do well to try to confirm Judge Garland if the opportunity remains; the Democratic minority might do well to filibuster that attempt. The next Democratic president is likely to nominate someone rather more progressive.

Patrick Wiseman, professor of law, teaches constitutional law and related courses, all of which are about the U.S. Supreme Court. He is following the Senate’s obligations in the nomination process.

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