President Obama’s choice of Merrick Garland for the vacancy on the U.S. Supreme Court, which he announced Wednesday morning, puts Senate Republicans in a bind or several binds.
Garland, chief judge of the second highest court in the land, is the least liberal and the eldest of the three final candidates Obama was considering, all qualities that make him about as good a choice from the Republicans’ perspective as they could hope to get out of Obama.
This is so clearly true that Republican Sen. Orrin Hatch, the most senior member of the Judiciary Committee, recently said when asked about the possibility that Obama would nominate the relatively moderate Garland:
“He [Obama] probably won’t do that, because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”
Guess again, Sen. Hatch. Now, if Senate Republicans don’t hurry up and hold hearings and confirm Garland, they risk the possibility of facing a much younger and more liberal nominee (if either Hillary Clinton or Bernie Sanders is the new president) and possibly with fewer means to stop that nominee (if the Republicans lose their Senate majority).
At the moment, the political future-knowers (among whom I do not count myself) believe that both of these are strong possibilities, especially if Donald Trump is the Republican nominee (also a strong possibility).
GOP problem
But Senate Republicans have a problem of their own making. Immediately upon the death of Justice Antonin Scalia, Senate Republicans invented a phony, brand-new, heretofore-invisible-but-nonetheless-deeply-revered Senate tradition that no Supreme Court vacancy should be filled during the last year of a president’s term. (I’ve written about this before. The senators who assert the existence of this principle have still not been able to point to a single instance in which a president declined to nominate or the Senate refused to consider a nominee to fill a Supreme Court vacancy based on this principle.)
Nonetheless, based on this principle, they declared — from Senate Majority Leader Mitch McConnell to Judiciary Chair Chuck Grassley on down to most of the Senate Republican caucus — that they would not vote on the confirmation of, nor even hold a single committee hearing to consider the qualifications of, anyone whom a certain incumbent president who happens to be in his last year in office might nominate.
Outside of the most loyal Republican ranks, this declaration has been highly unpopular and is deemed to have increased the chances that the Dems will wrestle the Senate majority away from the Repubs this fall. Even Grassley, who has been running regularly for office (state Legislature, then U.S. House, then U.S. Senate) since (this is not a typo) 1958 (!) without ever losing, is deemed to be in some danger of losing his seat this fall (although, to be honest, most of those who rate all the races still rate Grassley as likely to be reelected this year to a seventh six-year Senate term, at age 83).
Now, with today’s Garland nomination, and facing the prospect of a younger, more liberal nominee next year, a lot of Republicans probably wish they could hedge their bets and confirm Garland. Trouble is, their refusal to even hold hearings was declared not as a matter of holding the seat open in hopes of having a Republican president next year but as a matter of semi-sacred (if totally mythical) principle, which will make it awfully awkward if they reverse course, undiscover the previous principle and suddenly discover a new one, and try to rush Garland through the confirmation process.
Different scenario
If you torture the political calendar, you can come up with a different scenario, about which plenty of people in Washington have been thinking.
Suppose the Repubs stick to their principle for a few months, let’s say, just for the sake of discussion, until Election Day in November. Then they’ll know who the new president will be and how the new Senate will be composed. If they’re facing a new Democratic president and a Democratic Senate majority, they could quickly schedule some hearings on Judge Garland’s nomination and maybe even rush a confirmation vote through the Senate before the new president and the new Senate take office in January 2017.
Maybe that’s the secret plan. I certainly don’t claim to know. But if so, they should note that presidents have — and presumably President Obama could if the circumstances arose — withdrawn a Supreme Court nominee before the nominee came to a vote. Perhaps the next constitutional crisis will be over whether the Senate can confirm a Supreme Court nominee even if the president who nominated him has withdrawn the nomination. Or not. Stay tuned.
Trump
I should point out that there is no guarantee at all that a Trump appointee to the court will be any more appealing to Republicans than Merrick Garland. It reminds me of the Jesse Ventura administration. Jesse, whatever his failings as a politician, was widely regarded to have made good appointments for administrative offices. Where a President Trump is concerned, he might very well take it into his head to appoint outstanding jurists who might even be arguably conservative instead of the right wing ideologues Republicans prefer. In this and in many other matters, a President Trump who has received nothing but opposition from the Republican establishment is not beholden to Republican establishment concerns, at least for the moment.
Thank you for rational thoughts.
The little bit I’ve just checked on Judge Garland indicates he would not blow in the wind nor cling to one branch during SCOTUS storms.
If the Republican leadership can be smart rather than crafty, they might closely examine this possibility and confirm…and then make darn sure they hold the Senate for the coming retirement(s). But, I suppose they are also convinced they will take the Presidency, given their apparent general delusions this year.
We should really not expect that Garland would be seated before October, in any case. The business calendars of all concerned seem to make that fairly clear.
I agree
But would add that choices of Supreme Court justices can utterly backfire. See Earl Warren. It would be stupid for the Republicans to pass on this choice; the Senate could easily change hands.
So very true…
This is already a very wacky year, so perhaps something fairly certain is not only prudent but wise.
As of the evening news tonight, Mitch McConnell seems to be amiably firm in his original stance. Everyone’s focused on gamesmanship, maybe even Barack Obama, but that’s hard to tell for sure in considering whatever his endgame is. Perhaps he is truly offering a very straight deal here, or maybe he is assuming Republican intractability until January, when HRC likely will come into office with a much less moderate nominee and a Dem majority to confirm. That would seem a typical political gambit moving to their endgame.
Who really knows? No wonder the true majority out here, who just want to live reasonable lives with reasonable expectations, are fully frustrated, if not outright angry.
Obama nominates white Republican male.
Questions for McConnell:
Who would Trump nominate ?
Who would Clinton nominate ?
By all means wait.
Fun times.
Interesting
I have to agree with both Mr. Foster and Mr. Rovick. Fun times, indeed, and no guarantee that a (shudder) President Trump wouldn’t appoint someone even more antithetical to the alleged “values” of the Republican right wing. I have no idea how either the nomination or the election will turn out, but, while schadenfreude on the part of Democrats regarding the dilemma The Donald presents to Republicans as the front-running presidential candidate still strikes me as premature, the SCOTUS nomination is entirely different, and qualifies as a Republican dilemma for which I think schadenfreude is fully justified for Democrats. My personal hope is that the loathsome Mr. McConnell will stew, slowly and painfully, in this judicial pot that he decided should simmer for a while.
So we have the fun possibility
of a Republican Senate refusing to approve the nominee of a Republican President Trump.
Happy days are here again!
Democrats and nominations
Republicans are holding back on the nomination for the best reason there is . . . because they can.
Democrats should have run better senate candidates. They lost the senate. Too bad. Get over it.
President Trump will make a brilliant choice of a real winner who will make America great again.
“Because They Can”
Now, that’s what I call responsible government!
Not To Mention
Irrefutable logic.
To Be Fair
The “because we can” idea is exactly the kind of petty behavior we have every reason to expect coming from the Senate Republicans.
I can burn down my neighbor’s house.
I never thought of that as a good reason to do it.
….President Trump will make a brilliant choice of a real winner who will make America great again….
Hmmm…works pretty good as snark.
Great
satire
Trump’s choices
Since the Donald considers himself his best foreign policy advisor, we can only guess at who he might consider a competent jurist. Jesse?
Eric Black and His Posts
As a political junky I watched the polls, read all articles available, stayed up late last night channel switching for latest results, and met the delivery man at the paper box at 5:47 this morning. Then, I listened to MPR all day for the global reactions to Trump and Clinton winning states, the delegate count, etc etc…..with all this information I then tried to make sense of it all, with some humor so that I could discuss it with friends of different political views.
$#+*#? ! I could have saved hours and aggravation by reading Mr. Black earlier. He has developed into a master blogger. Good research, disclosure of his own perspectives, and increasing humor make his postings outstanding.
Pretty much agree
So that’s why I hang around here. Sometimes Eric does get a bit beyond it though, prompting me to jovially nickname this place “The Black Hole.”
Example:
“…Senate Republicans invented a phony, brand-new, heretofore-invisible-but-nonetheless-deeply-revered Senate tradition…”
That is not quite accurate with respect to “brand-new” or to “invisible” or to “invented,” and is likely not simple hyperbole. McConnell originally seemed to set this as a pragmatic election year policy (new or not), and today expanded that rationale, as news orgs report.
I’d be the first to accuse Old Mitch of cynicism; however, then I would be superfluous.
On the whole, Eric seems to have gained flexibility I don’t recall from earlier days.
Oh good!
A nominee who is already at retirement age. Mrs. Clinton might get to replace him in her second term. The best thing for her is that if the Senate doesn’t confirm prior to her election, she can nominate someone else thus being “not just like Obama”.
Maybe They Lack a Pension Plan?
Retirement age for SCOTUS members seems to be about 86, or death.
Correct-a-Mundo
If this nominee is confirmed, he need only make it to age 65 to perfectly fit your scenario, given pending mortality tables. Expectancy for men will likely be closer to age 86 than current charts.
The pension may be a lesser consideration than the private dining room. Probably would be for me, at least. A pretty good life with great food and security for life…as should be for these Supreme folk.
He’s a gun grabber
He supported the D.C. gun ban in 2007.
Parker v. District of Columbia ultimately became D.C. v. Heller which ruled that individuals have the right to keep and bear arms.
Before it reached SCOTUS, it was heard in Judge Garland’s circuit court, and a three-judge panel ruled that the D.C. handgun ban was unconstitutional. Judge Garland then joined three other judges in trying to have the full court overturn the ruling.
Heller was Scalia’s signature decision. Even considering a judge who would overturn it isn’t going to fly with the republican electorate.
Pro-gun senate democrats could not be reached for comment.
Heller was wrongly decided
Since Heller was so wrongly decided (Stevens dissent was so much stronger, and didn’t rely on attempting to glean what people thought 200 years ago), Judge Garland seems correct on this one. Oh, and did he grab your guns. Remember, gun rights at the federal level have been expanded under the current administration, not contracted, even though the wingnuts on the right like to claim the black president is coming for their guns.
“Heller was wrongly decided”
I would love to hear Garland make that statement in public.
But of course, he won’t because that would be the end of that.
Yep
When you rely on the ability to channel what someone was thinking 200 years ago, yes, Scalia relied on faulty logic – what someone was thinking, he might just as well used a fortune teller – that would be just as logical. The 2nd applies to the militia, not the individual. Stevens was right, Scalia wrong plain and simple.
We ARE the militia
That’s what you people don’t understand.
Go ahead, ignore that “well-regulated” portion of the sentence.
Just
a further thought on this specious claim. In 2007, the Court had heard only one 2nd A case in 1934, huh, how about that. there was no precedent, certainly with the SCOTUS. Also Judge Garland only voted to have the Circuit hear the case en banc, he did not vote to grab your guns. He along with Judge Randolph (a darling of the NRA and their ilk) voted this way. You might want to at least try to get your facts straight before you smear him.
Well said…
Mostly cable/radio talk coming through these days. Maybe reality truly is in writing.
It doesn’t have to make sense
The Republicans have spent eight years opposing everything/anything that Obama has imposed. They’ve done their best to slow or stop the normal functioning of government for the sake of a tiny minority of extremely conservative voters and their representatives. Why would they act differently now? He Mitch, welcome to your constituents. They are sick of you and Paul and your 40-member freedom caucus and the way you have shut down our government. Trump is taking over your party because your constituents believe he won’t act that way. Any movement is positive after eight years or no movement. You can gerrymander and rig all the congressional districts but you will never, never win a presidential election running far-right candidates.
There was a time that American politicians wanted to be seen or to act as statesmen. Statesmen put their country first ahead of their party and their own self interest. It caused a thing called compromise.
Choices
Obama could have shown a willingness to meet the Conservatives half way by nominating a Justice that had been brought into the system by one of the Bush Presidents. Instead he picked one that was brought in by Clinton. I think both sides are playing games…
Halfway
has become a relative data point. This nominee seems as close to “halfway” as one should expect, especially in 2016 America.
I’m sure SCOTUS scholars have much research on how Justices have moved along the philosophical/technical scale while on the Court.
How can anyone truly expect a highly intelligent thinker to be “predictable,” especially over many years of increased intellectual independence?
Predictable
I actually wish the Justices were less predictable. It is a pretty sad state when typically only one justice matters because typically we know how the other 8 will rule… Look at all the 5/4 rulings…
Actually
I believe that most (like 95%) of SCOTUS decisions are near unanimous.
It’s the few high profile political decisions that are split and get the publicity.
Why?
First of all, there is no meeting the conservatives in Congress “halfway.” It is an article of faith among them that anything at all President Obama does is illegitimate and must be opposed with every fiber of their being. “Meet them halfway?” What, and have them volunteer to be turned out for apostasy?
Second, why should it be up to President Obama to meet them “halfway?” He was twice elected President, and, as much as conservatives and self-described moderates may hate to admit it, that election was legitimate. He is as much entitled to pursue an agenda as any President, including, but not limited to, either of the Bush Presidents (just out of curiosity, did you say President Bush should have met Liberals “halfway” instead of nominating Justice Roberts? Right–that was different)..
Third, even a cursory examination of Judge Garland’s real record–not the over-heated spin on it put out by the right-wing agitprop machine–will show that his nomination looks an awful lot like an attempt to meet halfway,.
Takes Two to Argue
As long as you are willing to admit that Obama is equally responsible for the stale mate…
Typically folks here want to call the GOP folks the obstructionists. Where as I see both sides as contributing.
Sure, Both Sides Do It
How?
Did any Democrats participate in the January 2009 meeting at which it was agreed to oppose the new President at every turn?
Or do you mean that President Obama had the effrontery to be elected by a majority of the voters? And that he furthermore had the colossal gall to think that he should be able to pursue his stated policy goals?
You betcha
The Democratic president nominates an ideologically mainstream candidate who would be the oldest justice to join the Court since the Nixon Administration.
The Republican Senate refuses to take any action on the President’s nomination — for the first time since the 1850s.
Clearly, both sides are acting outside of accepted norms and must be shamed equally!
Process
So would you be happier if they hold hearings and turn him down?
Yes
Because then the Senate would be forced to take a stand. They would have to explain why a nominee who is the very definition of “centrist” is unacceptable to them. They would have to come up with some reason other than “Obama did it,” and, frankly, I don’t think they can.
Sure, the gun fetishists will paint him as a “gun grabber” for his vote to rehear Heller. The anti-abortion crowd also objects to him because he said some nice things about Harry Blackmun. Will the Republicans be willing to admit that these fringe groups now control the agenda in Washington? Are they hiding from their own extremists?
Sounds Fine to Me
I am okay either way. By the way, a very large group of Americans love their guns. I think “fringe” may be an understatement…
“Fringe”
Most gun owners have no objection to reasonable regulation that protects the public while acknowledging the rights of responsible gun owners. The “fringe” are the ones who have been led to believe that a vote to rehear a case amounts to “gun grabbing.”
Games
It is certainly the case that President Obama is engaged in a bit of gamesmanship with the Republicans. While it is true that Garland was appointed by a Democratic president, just recently he was named by Republican Senator Hatch as an acceptable nominee. Such are the perils when a senator tries to advise without being willing to consent.
The strategic problem for Republicans was that in the aftermath of Justice Scalia’s passing, and motivated by their blind hatred of President Obama, they painted themselves into a political corner leaving all the flexibility to their adversary. The political result is that they will have to explain how refusing to take yes for an answer isn’t exactly the kind of political obstructionism the American people are emphatically rejecting from both parties.
Americans believe in fair play, in giving folks a chance to be heard. As despised as Justice Bork was by many, nobody dreamed of denying him a hearing. Denying the Judge Garland the opportunity to be heard won’t in itself lose Republicans election, but it was a mistake that will damage them in a year where they don’t have much of a margin for error.
Perspective
Their choice will not sway Democrat or Republican voters either way, and I am not sure the Moderates will have an opinion either way… But it will make a good talking point.
Should the current POTUS push a candidate through? or
Should it be another issue for the Presidential election?
I am okay either way.
Our current President is not “pushing” someone through to the court. He is doing what the Constitution provides that he do: nominate a person to fill a Supreme Court vacancy. He has nearly a year left in his second elected four-year term, and if he didn’t nominate someone we would hear Republican cries that he’s not doing his duty. The American people have spoken, twice: THIS man is the one we want in office until next January. We want THIS president to nominate a replacement for Scalia.
I now cry, with Eric and tens of millions of other Americans, that the Republicans in the U.S. Senate are not doing their duty, under the Constitution. They are determined to insult and obstruct our first black President and they don’t care about insulting and disrespecting both an admired jurist and our Supreme Court as they insult the President.
Pushing
Of course he is pushing for his Democrat based agenda. Just as the Senate Republicans are pushing for their Republican based agenda.
If Obama truly wanted to make this happen in 2016 he would have nominated a Justice more like Scalia. Instead he is happy to make this a political issue in an election year, just like the Senate Republicans.
By the way, the voters also chose the Senate and apparently they want the Senate to ensure the SCOTUS stays fair and balanced. I am also disappointed that he did not nominate an acceptable candidate and we will need to hear about this for months.
The SCOTUS is not
supposed to be a political body; members are supposed to be chosen for their knowledge of the law (Thomas was an exception with his ABA C-rating; Scalia was not),
NOT for their political positions.
There is nothing in the Constitution that says that the Supreme Court justices must in some way reflect the political makeup of Congress.
Do you think that another Scalia would be acceptable to anyone but Republicans?
Your last paragraph is a non sequitur (which ought to be a legal term).
Whatever happened?
Moderators, whatever happened to “We do not allow the use of nicknames for people or groups that are meant to denigrate or deride. The use of ‘Democrat’ as an adjective is one such example”. (https://www.minnpost.com/inside-minnpost/2012/09/commenters-minnpost-wants-your-views-respectfully)
Lately I have been seeing “Democrat as adjective” used more and more in the comments sections. If this rule is no longer going to be applied, then please let us know.
Still the policy
Hi Pat,
This policy remains in place. Thank you for the reminder.
Puzzled
Please help me to understand the fine point here.
“We do not allow the use of nicknames for people or groups that are meant to denigrate or deride. The use of “Democrat” as an adjective is one such example, and we’ve banned the use of several derogatory terms some use to refer to the Tea Party.”
So this is wrong…
“Of course he is pushing for his Democrat based agenda. Just as the Senate Republicans are pushing for their Republican based agenda.”
Would this be better?
“Of course he is pushing for the agenda supported by the Democrats. Just as the Senate Republicans are pushing for the agenda by the Republicans”?
As always, I never intentionally seek to denigrate or deride and am very interested in following the rules. Thanks John
Perhaps this will help
https://en.wikipedia.org/wiki/Democrat_Party_%28epithet%29
Abbreviation
Is there any acceptable acronym or abbreviation for the Democratic Party?
I used DFL a couple of times and people critiqued that also.
I don’t know why people would criticize the use of DFL
Unless, of course, you were using it in reference outside of Minnesota. (DFL is specific to Minnesota, but I would expect you know that.)
None
No abbreviation then for the national entity.
“If Obama truly wanted to make this happen in 2016 . . .”
“. . . he would have nominated a Justice more like Scalia.”
Words fail me. The idea that President Obama is under some kind of obligation to dismiss his agenda or his principles so the Republicans will play nice is wrong, on so many levels.
Let’s indulge in a little hypothetical: If the unthinkable should happen and Ted Cruz were elected President, would you expect him to moderate his views, in order to go along? Or would that be an example of “elections have consequences,” because “moderation” means that Democrats and liberals are the ones who are supposed to compromise? Does the “both sides” trope fail then?
It doesn’t matter whether you approve or disapprove: Barack Obama was elected President, and will remain President until next January.
Indifferent
If the President is a Republican in Jan2016 and the Senate is controlled by the Democrats I would be saying the same thing…
“Let me repeat that I do not care what “Cruz” or the Senate do regarding this issue. I am just pointing out that “Cruz” chose to nominate someone that would be unacceptable to the Senate Democrats at this time… And the Senate is logically choosing to resist his action.”
They are both doing what they think is best for the country… I am fine with Obama’s action and the Senate’s counter reaction. No problems here.
On the upside, if the Liberals are correct that the voters will be angered by this action the GOP has taken. Then this may work out well for the Liberals if they can take the Presidency and the control of the Senate. Then Hillary can select a more Left leaning Justice.
My only point is that both sides are playing this hand of cards and the stakes are pretty high… It sure would nice to have a SCOTUS ruling where we did not know how 8 of the 9 Justices would rule… Imagine how powerful that Centrist Justice’s ruling is?
1 or 2 humans gets to decide how ~320 million people will behave. That has to be a great rush or a great burden depending on the Justice’s personality and attitudes.
In the case of LGBT marriage, that justice was able to over rule the view 100+ million people and dozens of states who were against it.
In the case of Citizens United that justice was able to change politics in America against the will of 100+ million people and I assume many States.
Yes I think is worth a big drawn out fight…
Back to the Basics
Let’s review the constitutional language that talks about taking partisan considerations into account when a President makes a nomination for the Supreme Court:
I’m sorry, I couldn’t hear you over the chirping of the crickets.
A “long drawn out fight is not objectionable as long as it is not based on the entirely specious notion that a Justice should not be nominated in an election year. Have a hearing. Analyze the nominee. Don’t hide behind the skirts of some ad hoc theory cooked up as yet another way to snipe at the President.
So,
why didn’t Reagan nominate someone more like Berger?
No precedent for this?
I have not seen anyone mention this. I apologize if they have.
Joe Biden 1992: “President Bush should consider following the practice of the majority of his predecessors and not, and not name a nominee until after the November election is completed.” That was then-Sen. Joe Biden in 1992 speaking against George H.W. Bush nominating a Supreme Court justice in an election year. This video is not hard to find.
Chuck Schumer 2007 (a year before the election): “Given the track record of this president and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least, I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances”
The Democrats had no obligation to act then, and the Republicans have no obligation to act now.
It has indeed been mentioned
As has the fact that (unlike the above situations), Scalia did not choose to die (or to resign) before the end of the current President’s term so that he could appoint a successor.
You haven’t seen anyone mention this?
You haven’t been reading the comment threads very carefully, then!
Mentioned?
It has been mentioned repeatedly by the right wing of the commentariat here. Repeatedly, as in “whipping a dead horse” repeatedly. These comments are not hard to find.
To sum up: These statements were hypothetical. No Supreme Court Justice was presented to the Senate for approval in either 1992 or 2007. Nothing ever came of these statements.
Furthermore, both of these statements set out bad policy statements. Bad then, bad now. There is no Constitutional reason for the Senate to refrain from hearing the nomination of a Supreme Court Justice in an election year. In fact, if we go back to the Founders (those long-dead men whose views on gun ownership continue to control us today), there is a strong indication that the Senate has an obligation to consider all nominations and either confirm or reject them (check out Federalist 66, which makes a passing reference to the issue).
There is also no historical precedent for the Senate to refuse to consider a nomination in an election year. Anthony Kennedy was nominated by lame duck President Reagan, and confirmed by the Senate in 1988. Heck, John Adams nominated John Marshall after Adams had been defeated for re-election, and the Senate had no trouble confirming him.
The logic of the Republican “principle” frankly eludes me. Would a nominee sent to the Sneate last year have been any different, from a timing standpoint?
No
Certainly not in this cycle.
Strange thinking
The Democrats had no obligation to act then, and the Republicans have no obligation to act now.
This is the sort of statement that always baffles me. Democrats did have an obligation to act then, just as Republicans have an obligation to act now.
And by the way, from where did this notion emerge that people today are bound by things they said in 1992? Was there some sort of particular magic attached to that year? For myself, I don’t at al feel bound to agree with things the much loved but admittedly garrulous Joe Biden said last week let alone things he said two and half decades ago.
Long and intersesting
Looks like a play ground argument not a “Most powerful country on the planet” decision:
He hit me first: Sorry some of you folks, we should be way beyond that and if you can’t, look in the mirror, the problem has now been identified!