President Obama has done his job; now Senate Republicans should do theirs.
On Wednesday, Obama nominated Merrick Garland to the U.S. Supreme Court seat that was vacated by the death of Antonin Scalia. Garland, 63, is the chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, and early indications are that he is regarded as somewhat liberal with some centrist leanings as a jurist.
Not that any of that matters to Republicans, who hold the majority in the Senate. Not long after the death of Scalia, a conservative titan, Senate leaders declared that they would not consider any potential nominee brought forth by Obama during a presidential election year. On Wednesday, Senate Majority Leader Mitch McConnell, R-Ky, reiterated: “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction.”
In the process, Republicans are embarrassing themselves and ignoring the U.S. Constitution. While Obama’s tenure as president will come to an end, that end is still 10 months away. There is no provision in the Constitution that says a president’s power ends three years into their term; there is no provision that calls for the suspension of constitutional duties when other candidates start running for president.
The fact is that the American people have had a say in the direction of the Supreme Court. They re-elected Obama in 2012 with 51 percent of the popular vote and 62 percent of the electoral vote, embracing the expectation that he would remain in office for four full years and that he might be called upon to nominate justices.
Article II of the U.S. Constitution states that the president shall nominate Supreme Court justices “by and with the advice and consent of the Senate.” Interpretations of “advice and consent” are open to debate, but in practice it has meant that nominees are given a hearing before a judiciary committee that then makes a recommendation to the full Senate for an up-or-down vote. The intention of Senate Republicans to not hold such hearings represents a dangerous precedent that ramps up partisan rancor and invites future stonewalling when the other party has the majority.
Democrats themselves are not above such stonewalling. In 2006, then-Senator Obama supported a filibuster attempt against the nomination of Samuel Alito to the court. In 1992, then-Senator Joe Biden, now the vice president, suggested that President George H.W. Bush should refrain from making a nomination should a vacancy occur during that election year. Obama and Biden were wrong on their actions, just as Senate leaders are in the current case. Turning Supreme Court nominations into a tit-for-tat wrestling match does a disservice to the American public and places partisan ideology above constitutional principle.
None of this is meant as a commentary on Garland’s qualifications or the chances of his nomination being confirmed by the Senate. Instead, it is a call for him to receive a fair hearing as has become common practice under the parameters of the Constitution — a hearing that not only will examine his qualifications but will expose the sense of fairness held by Senate Republicans. If Republicans don’t believe he is qualified, they can reject him.
In 2010, Sen. Orrin Hatch, R-Utah, called Garland “terrific” and said he could be confirmed “virtually unanimously.” The American public deserves to know whether that still holds true.
