The role of the U.S. Supreme Court has been controversial from the start of our nation, and nominations to it have been at the center of our presidential elections for more than three decades.
Yet, to maintain the unique role of the court as the one institution of our federal government not subject to the ballot box, it must be removed from the partisan fights of the day. In today’s frighteningly ugly politics, the court is at great risk.
It is in this volatile atmosphere that President Barack Obama on Wednesday announced his nomination of Merrick Garland to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia.
Within hours of Scalia’s death last month, Republicans who control the U.S. Senate told Obama not to even bother sending over a nominee. Majority Leader Mitch McConnell reaffirmed his position Wednesday morning, despite polls showing that 66 percent of Americans want a hearing on a nominee. McConnell, however, maintained that the decision should wait until the next president takes office to “give the people a voice in filling the vacancy.” It’s a ridiculous argument that is easily countered: The people already made their voice known in selecting the current president. Twice.
Politics always shapes the selection process, including this one. Facing a hostile Senate, Obama made a tactical decision, and a political one, to nominate the chief of the federal appeals court in Washington, D.C., an excellent jurist who is as mainstream a candidate as can be found.
Garland is an older white male, an establishment figure in the nation’s capital, someone with a prosecutorial background who has rarely overturned a criminal conviction. He would be comfortable in the Supreme Court’s center, not one who would clearly tip it to the left.
Garland’s judicial record shows that he moves the law in increments, deciding the facts of the case before him, not trying to bend them to fit a predetermined outcome. In that vein, he’s a more conservative justice than the man he would replace.
The Senate should hold confirmation hearings and vote on the nomination. If Garland loses, then that, too, is how politics properly shapes the court. Instead, McConnell refuses to even meet Garland. Sen. Roy Blunt, a Missouri Republican, was more insulting. “I can barely schedule a call with my son’s math teacher yesterday, so probably no,” Blunt said.
But it’s Utah Sen. Orrin Hatch who best embodies the absurdity of Washington. He had previously said he would confirm this nominee, and just last week praised Garland as a moderate. Wednesday morning, Hatch said, “It’s a question of the toxicity of this climate. I’m sick and tired of having Supreme Court nominations processes in this politicized atmosphere. It demeans the court, demeans the whole judicial system.” Later in the day, Hatch said he was open to a post-election hearing on Garland.
Senate Republicans are calling this a fight about principle. They are right. An enduring principle of our government is that a sitting president makes nominations to the Supreme Court and the Senate decides whether to confirm those choices. Senators who refuse to take part in the process dishonor themselves, their chamber and the very Supreme Court they claim to protect. — The editorial board