Before getting into the meat of this post, let me state the following:
- The president of the United States has every right to nominate someone to the United States Supreme Court, despite the fact that this is an election year.
- The United States Senate has every right not to act on the nomination, and no constitutional obligation whatsoever to actually hold hearings or have a vote.
The above having been written, I believe that the United States Senate should–barring the revelation of any skeletons in Merrick Garland’s closet–confirm his nomination as an associate justice of the United States.
Here is why:
- First off, Judge Garland is a tremendously accomplished, intelligent, meticulous, thoughtful attorney, with a history of public service in the most difficult of circumstances. Judge Garland knows the rules, plays by the rules, and thus, ensures trust in his judgment and his integrity. One might disagree with a particular call that he might have made–either as a judge, or as a prosecutor–but one cannot question his sense of honor, decency and fair play. Would that more people were so upstanding.
- Judge Garland is no Justice Scalia–no one is, or could be–and those who wanted a justice in the ideological and philosophical mold of Scalia will not find that justice in Judge Garland. But Judge Garland is no bomb thrower from the port side of the ideological/philosophical divide. He will surely issue rulings that Antonin Scalia would not have issued, but he is a moderate and a centrist. Given the fact that President Obama could have nominated an ideological warrior from the left, Republicans should consider the Garland nomination the best news possible under the circumstances.
- We may yet have a contested convention on the Republican side that nominates a presidential candidate not named “Donald Trump.” But the chances of that are lessening. Moreover, even if a contested convention nominates Trump, or Trump wins the nomination on the first ballot, the Republican party will be deeply divided and angry, with many Republicans–me included–refusing to vote for Trump in the general election. Barring a recession, a terrorist attack, or an indictment, Hillary Clinton will likely beat Donald Trump. If Clinton wins, and if that victory is a rout–an entirely feasible scenario, mind you–the Republicans could well lose the United States Senate. In which case, President Obama could rescind the Garland nomination, and let Hillary Clinton nominate a more ideological candidate who could easily win confirmation in a Democratic Senate. Republicans should not take chances, especially when the circumstances are what they are. They should confirm the 63 year old Garland, with the reasonable hope and expectation–based on Garland’s record as a judge–that he will not push and shove the Court to the left, and that at age 63, Garland could himself be replaced relatively soon, perhaps by a Republican president.
I don’t expect Republicans to follow my advice on this matter. I expect them instead to make the kind of tactical decisions that have led in the past to (a) government shutdowns that have achieved precisely nothing for the Republican party, and have instead, cost the party popularity points in the polls; and (b) the decision to forgo attacking and defining Donald Trump, thus allowing Trump to become the strongest candidate for the Republican presidential nomination.
How are those decisions serving the Republican party right now?