The Constitution is crystal clear on what the Senate must do when it comes to considering a nominee to the Supreme Court. We’ll let Minority Leader Harry Reid, a Democrat, explain, for he does it well: “Nowhere in the Constitution does it say the Senate has a duty to give presidential nominees a vote.”
But that was then, of course, and this is now.
Democrats now are shocked — shocked, we tell you — that Republicans, who took control of the Senate after Reid gave everyone the constitutional lesson quoted above, refuse to give President Obama’s new court pick a vote.
Republicans once tried to appeal to Democrats’ sense of decency to get hearings for President George W. Bush’s judges early in his term, but their pleas fell on deaf ears.
This is why, when Mitch McConnell spoke Wednesday in response to Obama’s nomination of Merrick Garland, he stuck to the letter of the law and noted that “it is the Senate’s Constitutional right to act as a check on the president and withhold its consent.”
Senators are not Obama’s employees. Reid himself made this plain shortly after his candidate was elected in 2008, saying, “I don’t work for Obama.” Calls for Republicans to “do their job” and approve his nominee are flatly ridiculous.
Vice President Joe Biden, when he was a senator, pointed out when arguing against the filling of a hypothetical Supreme Court vacancy in 1992, that there is little precedent for presidents successfully appointing justices in election years, let alone in their last year in office. The last president to do so successfully was Franklin Roosevelt, 76 years ago, when there was a Democratic supermajority of 68 senators.
And what of the nominee himself (whom Obama served up with his usual side dish of unsolicited, tendentious, and sanctimious didacticism)? Judge Garland is not a moderate or a compromise choice, as some in the news media say. He is, rather, a rare liberal who disappoints left and right by opposing their common priorities.
At a time when liberals and conservatives are working together on criminal justice and policing reform, Garland’s jurisprudence reveals a brand of law-and-order liberalism that defers to police, prosecutors, and stronger executive powers. In administrative law, he has almost invariably sided with regulators, most famously when he ruled against a terminal cancer patient who wanted access to a not-yet-approved experimental treatment as a last hope.
On gun rights Garland tried to prevent the landmark Heller case from ever reaching the Supreme Court. The National Federation of Independent Businesses notes that Garland “nearly always sides with regulators, labor unions and trial lawyers at the expense of small businesses.”
But the 63-year-old Garland is the “safe” pick in one very important sense. The limbo he now enters until the end of Obama’s presidency is a safer place for him than it would be for younger jurists whom Obama was thought more likely to pick. He has little to lose from becoming a political football in 2016. He has a distinguished judicial career behind him and he sits on the federal bench with a lifetime appointment. His nomination can languish without serious consequences, especially if there are no hearings.
He might even be reappointed and confirmed after the election. This fight, after all, is about a principle, not a person.
The choice of Garland represents Obama’s acknowledgment that the nomination is going nowhere. The real question is whether Democrats can succeed in profiting politically.
That is unclear. Public opinion has varied in the polls according to how it is asked. The maelstrom of this election is such, though, that it is hard to envisage this nomination looming large over it. What is clear is that Obama plans to maximize the benefit that this controversy can bring to his party.
