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Supreme Duplicity: The Fight to Fill Justice Scalia’s Seat


Supreme Court Justice Antonin Scalia has long been praised by Republicans as the model of judicial restraint, a proponent of strict adherence to the literal wording of the United States Constitution.  Republican Speaker of the House Paul Ryan argues that Justice Scalia “did more to advance originalism and judicial restraint than anyone in our time.”  Yet, within hours of Justice Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) declared that his seat on the court “should not be filled until we have a new President,” because “the American people should have a voice in the selection of their next Supreme Court Justice.”

Let’s set aside whether the American people had already raised their voice by overwhelmingly re-electing President Obama in 2012 – after Sen. McConnell himself pledged that “the single most important thing we want to achieve is for President Obama to be a one-term president.”  Sen. McConnell’s stated justification for leaving a Supreme Court seat vacant for at least eleven months flies directly in the face of the United States Constitution.  Article II, Section 2, Clause 2 states that the sitting President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”  Nothing in the Constitution suggests this power belongs to the next elected President, or that the Senate can wait a year to fulfill its duty to provide “advice and consent” on the nomination.

a politician speaks to the public with a set of masks

Several Republican Senators have recently invoked the so-called “Thurmond Rule,” under which the Senate supposedly stops confirming judges in a presidential election year.  That “rule” was first mentioned by Sen. Strom Thurmond in June 1968, 180 years to the month after ratification of the Constitution (including Article II, Section 2, Clause 2).  It is not a rule at all: not written down anywhere, not formally approved by anyone, and not consistently applied at any time.  It is often referred to as the “Thurmond Myth.”  As Sen. McConnell himself said in 2008: “The seeming obsession with this rule that doesn’t exist is just an excuse for our colleagues to run out the clock on qualified nominees who are waiting to fill badly-needed vacancies.”

Republican hypocrisy took on another dimension once President Obama named his nominee: Merrick B. Garland, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit.  Before taking the bench in 1997, Judge Garland worked as an Assistant United States Attorney, leading investigations that resulted in the arrests, and eventual convictions, of the Unabomber (Ted Kaczynski) and the Oklahoma City Bombers (Timothy McVeigh and Terry Nichols).  He was confirmed for his current position by a Senate vote of 76-23, which included 32 Republican “yes” votes.  Sen. Orrin Hatch (R-UT), then the ranking minority member of the Senate Judiciary Committee, declared:

Merrick B. Garland is highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be questioned… His legal experience is equally impressive… Accordingly, I believe Mr. Garland is a fine nominee. I know him personally, I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the court. I believe he is not only a fine nominee, but is as good as Republicans can expect from this administration. In fact, I would place him at the top of the list.

In May 2010, when President Obama was considering nominees for the Supreme Court seat vacated by retiring Justice John Paul Stevens (which ultimately went to Justice Elena Kagan), Sen. Hatch said that Judge Garland would be “very well supported by all sides” and there was “no question” he would be confirmed.  In March 2016, just days before the nomination was announced, Sen. Hatch reiterated his support for Judge Garland: “The president told me several times he’s going to name a moderate, but I don’t believe him.  He could easily name Merrick Garland, who is a fine man.”

But, as with the individual mandate, campaign donor disclosure, the deficit-reduction commission, and so many others, once President Obama adopts a Republican idea, the Republicans themselves run away from it.  So now we have a Republican pledge to ignore Constitutional duties and block Judge Garland’s nomination.  Most Republican Senators have insultingly refused to even meet with Judge Garland.

For two months, it has appeared that the only hope of defeating Republican obstructionism was through political pressure placed on the 24 Republican Senators standing for re-election in November 2016.  Last week, a bipartisan group of eight Solicitors General signed a joint letter to Sen. McConnell and Sen. Charles Grassley (R-IA), the current Chairman of the Senate Judiciary Committee, in support of Judge Garland’s nomination.  The Solicitor General is the person appointed to represent the United States before the Supreme Court.  He or she is the most frequent advocate before the Court – frequent enough that the Solicitor General is sometimes called “the tenth justice.”  The eight Solicitors General who signed the Garland letter spanned every administration stretching back to President George H.W. Bush and included Paul Clement, who previously clerked for Justice Scalia.  The letter described Judge Garland’s “history of excellence in the law,” including his respected 19-year tenure on the Circuit Court of Appeals, and concluded: “we are unified in our belief that Judge Garland is superbly qualified to serve on the Supreme Court if he were confirmed.”

Shortly after the Solicitors General’s letter, retired Justice John Paul Stevens, who was appointed by Republican President Gerald Ford, said that the Senate should “go ahead and hold a hearing” on Judge Garland.  He joined retired Justice Sandra Day O’Connor, a Reagan appointee, in opposing the effort to keep the position vacant until after the next presidential election.

Perhaps the former Justices’ statements, and the remarkable, bipartisan letter from eight people who each served as our country’s top representative before the Supreme Court, can overcome the partisan gamesmanship that has so far stalled Judge Garland’s nomination.  Only then can the Senate conduct the hearings, hold an up-or-down vote, and fulfill the “advice and consent” role envisioned by our Founding Fathers.  For true lovers of our Constitution, that would be a very good thing indeed.

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