Last week President Barack Obama nominated federal appellate judge Merrick Garland to fill the vacancy created by Justice Antonin Scalia’s untimely death in February. Under the appointments clause of the Constitution, Garland won’t take a seat on the Supreme Court unless the Senate approves his appointment. Which isn’t likely: Soon after Scalia’s death, Senate majority leader Mitch McConnell announced that Senate Republicans would block the appointment of an Obama nominee, regardless of who the person might be, until after the November elections.
Of course, Obama wants Garland confirmed, and now. But Obama has no constitutional authority to force the Senate to commence a confirmation process that normally includes hearings and a vote in committee, debate on the floor, and — if the nomination makes it that far — culminates in a vote consenting to or rejecting the appointment of the nominee. A president has the power to nominate anyone he wants to be a justice. Yet for a president actually to appoint his nominee, he must have “the advice and consent of the Senate.”
The Constitution doesn’t define those words but leaves the task to the Senate. And what this Senate decided is that there will be no consent given, and therefore no confirmation process begun. Nothing will happen with the Garland nomination in the Senate — at least for now.
In Garland, who is 63, President Obama has picked a judge with excellent credentials and a good reputation. A graduate of Harvard Law School, he was in private practice during the 1980s before becoming a prosecutor for the U.S. attorney’s office in Washington, D.C. During the Clinton administration he joined the Justice Department, where he supervised the prosecution of crimes of domestic terrorism, including those by the Unabomber and Timothy McVeigh.
In 1997 President Clinton put Garland on the U.S. Court of Appeals for the D.C. Circuit. He has compiled a record that Obama is trying to sell as that of a judicial moderate. In reality, it is more the record of a liberal. He has participated in a number of Second Amendment cases and demonstrated he would likely be a reliable vote against the right to keep and bear arms. He has also consistently deferred to decisions by federal regulatory agencies and would seem highly unlikely to rethink separation of powers issues raised by the modern administrative state. Garland has not had occasion to opine on many of the questions that have sharply divided the Court — including those involving same-sex marriage, abortion, and voting rights. But there is no reason to think he would break from the Court’s liberals in those areas.
Right now the Court includes four judicial liberals and three judicial conservatives; and then there is Justice Anthony Kennedy, who votes with the conservatives but often joins the liberals on social issues, such as same-sex marriage. Garland is not the most liberal nominee Obama could have selected, yet with his addition the Court would move undeniably to the left — indeed, would become an unambiguously liberal court. Garland would be the fifth vote, and sometimes the sixth, on that Court.
Is that the kind of Supreme Court the country wants? This is the question Senate Republicans want voters to consider this November. That is why they have taken their no-consent position, rendering pointless a confirmation process.
Their position is principled but hardly without risk. A Democrat could win the presidency, and Republicans could lose their Senate majority (with either eventuality likely to be for reasons unrelated to the philosophical direction of the Court). If the GOP takes a drubbing in November, some Republicans might be disposed to confirm Garland in a lame-duck session. As Sen. Jeff Flake (R-Ariz.) told the Wall Street Journal, “For those of us who are concerned about the direction of the court and wanting at least a more centrist figure — between him and somebody that President Clinton might nominate, I think the choice is clear.”
The best scenario is the much different one in which the presidential candidate with the best understanding of the law and the courts — Republican Ted Cruz — wins the White House, Republicans retain the Senate, and a Scalia-like judge is nominated. And, “with the advice and consent of the Senate,” is confirmed.
