Wednesday, March 16, 2016

Obama Nominates Merrick Garland for Supreme Court

(Photo obtained from Politico, taken by the Associated Press)

President Obama announced today his nomination of Merrick B. Garland to fill the vacancy on the court, someone he believes is “widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence.”

To provide some background, Garland has served as a federal appeals judge for the DC Circuit since 1997, a court that is widely viewed as the second-most powerful following the Supreme Court. His other qualifications include graduating with high honors from Harvard Law School, clerking for Justice William Brennan, and holding senior positions in the Justice Department. His age also makes him an ideal Obama nominee: at age 63, Garland is the oldest person nominated to the Supreme Court since Nixon’s nomination of Justice Lewis Powell in 1971.

Following the death of former Justice Antonin Scalia last month, there was considerable discussion about whether the vacancy would be filled before the end of Obama’s presidency. President Obama hoped that his nomination would be seen as a compromise: “I simply ask Republicans in the Senate to give him a fair hearing, and then an up-or-down vote. If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair.”

Despite potentially disappointing from members of the Democratic Party who hope that a strictly liberal candidate would fill the ninth seat, Obama’s choice of Garland, “a well-known moderate who has drawn support over decades,” is definitely a politically strategic move. By nominating a unquestionably qualified moderate instead of a liberal, President Obama essentially dared the Republicans to obstruct the nomination process—and they did.

Senate Majority Leader Mitch McConnell stated later in the day that the Senate would not consider Garland’s nomination, that it would be unnecessary to act further on this nomination, and that the Senate would revisit the matter when it considers the qualifications of the next nominee.

Adding to the awkwardness of the situation, senators in the Republican Party have praised Garland in the past. For example. in 1997, Utah Senator Orrin Hatch supported Garland’s nomination to the DC Court of Appeals, saying

“Merrick B. Garland is highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be question… 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.”

All of this ties back into the political factors which influence the nomination process of the Supreme Court. Garland indisputably meets the legal qualifications for nomination; however, obstructionist politics have prevented perhaps one of the most reasonable nominees the Republicans could have hoped for. Looking back at vacancies in the Supreme Court during election years in the past, it is definitely not standard practice to leave a seat open until after the election. As to whether or not that happens, we’ll just have to wait and see.

Should a vacancy on the Court be a consideration for voters during an election year?

What do you think about McConnell’s response? Is it justified?



Anonymous said...

Thank you Russell for your post. I believe that Obama's nomination is an interesting one because it not only exposes that the Supreme Court is politicized, but it also makes a statement against the Republican-dominated Senate. Mentioned in the post, Merrick Garland is relatively moderate with a liberal slant. The Republicans in the Senate may want a nominee that is similar to Justice Scalia in terms of ideology; however, due to Scalia's extreme beliefs, almost any nomination would result in a loss of sorts for the party. By nominating a moderate, Obama challenges the extremism that is happening, which is in part caused by Senate Majority Leader Mitch McConnel's unwillingness to even consider Garland's nomination. Obama also purposefully picked a nominee that is relatively old from the start, making the nomination more reasonable (potentially arguable though). Some have argued that the reason why Republicans are taking a strong stance on this issue is because the effects of having a majority in the Supreme Court is worth a lower public approval of the party.
Does this type of extremism/obstructionism from the Republican Party occur in other scenarios as well? Is the Democratic Party guilty of other "extremist" actions?

While reading Russell's post, I was wondering how many Republicans are breaking from the party's position to at least consider Garland. In a New York Times article, it discusses that some senators are willing to consider Garland because of political reasons. Specifically, Republican senators from Democratic-dominated states as well as senators that are going to run for reelection against Democrats (for example Mark Kirk from Illinois) are more willing to move forward towards the nomination. Some senators, such as Thom Tillis from North Carolina, are willing to move forward just because they don't want the party to seem "obstructionist." The following websites discusses a few cases that demonstrate that not all Republicans are in favor of McConnell's response:

Although the Senate may not approve Garland's nomination, Obama should ultimately be able to get one of his nominees through to the Supreme Court. I believe that voters should have no role in attempting to fill the vacancy.
What do you think about the situation? What should Obama do if Garland isn't approved by the Senate? Nominate someone else until the Republicans finally approve?

Anonymous said...

Good post! I think this is an extremely interesting debate that will have major implications on our nation's future. Because of this, I think it makes sense as to why we see the GOP's refusal, particularly from Mitch McConnel, to address the nomination. Although it's easy to point out the GOP extremism as the reason for their refusals, I believe that if the roles were reversed, the exact same things would occur. In fact, many of you have probably already seen the clip of Joe Biden, who was senator at the time, speak against the nomination of a Supreme court justice by George H.W Bush during the 1992 election year. He described that "it would be unfair to the American people" in his comments, the same message that is being pushed by the GOP. My overall opinion is that although it's an unfair situation, things wouldn't be too different if the roles were switched. In regards to the other questions, the common consensus among political pundits is that there is no chance a nominee gets elected before the election occurs. I slightly disagree with the point that voters have no role in filling the vacancy. I think the voter's voice will be heard with who they elect in this coming election. Smart voters will know that whoever they vote for in this Presidential election, will have large implications on the future of our supreme court as well. I think it's only fair to give the people this option. Imagine if a Republican President was in the same spot as Obama right now. Every Democrat would contest this nomination of a conservative justice. The only fair option in this case is leaving it up to the people to decide.

Anonymous said...

I do not think that McConnell's response was justified. It seems that he is just trying to get the vacancy filled with someone who has more Republican ideology. Moreover, since Garland was so moderate, it is odd that he was dismissed from being considered. It sounds like Garland would be a great candidate for the vacancy with lots of experience and respect. It may be that McConnell is trying to keep the vacancy open until after the new presidential election. Then, if it is a president that McConnell supports more, the Republicans would have more influence over the judicial branch. I think that if the vacancy is still open by then that it would be something important for voters to factor in.

Daniel Jun said...

But should we allow a President who's in his last year of office to pick an official that can have decades of influence. Would it not make more sense for the next President, the one that the people are going to pick? Of course, the time frame is not perfect, and a moderate choice for the position definitely makes this argument shine in Obama's favor, but we that does not mean we should be quick to judge the GOP as corrupt and bigoted. While I would have liked for the seat to be filled, if only because I dislike the idea of having 8 Supreme Court Justices instead of 9, the fact remains that the decision that is taking place (or has taken place) right now will have drastic effects on the future of Supreme Court cases. The President acts as a representative zeitgeist for our age, and I believe that, while the GOP should have at least allowed for a vote to happen, that this rejection is not necessarily as terrible as it would seem at first glance.

Louis Villa said...

In response to Daniel, I dont think anyone is saying that the republican party is bigoted. Trying to stall the nomination is a smart choice for them politically because they would potentially be able to nominate someone who was as conservative as Scalia. The debate is based around whether or not the Senate should agree to almost any nomination by the president based on the fact that is one of the roles he is given by the constitution.

I think that if every time there is a vacancy, we wait for a president that had the same political leaning as the judge that left to nominate someone, the SCOTUS will never change to reflect the more widely accepted social positions of the country.

Langston Swiecki said...

I find it fairly ironic that the argument perpetuated by the Republican congressmen is related to Obama being in his "lame duck" phase as a president, especially considering that they are looking for a replacement for Justice Scalia, a major innovator of the originalist approach to constitutional law, which states that the intent of the founders should be brought into consideration when delivering a verdict. The reason for this is that the highly undemocratic system in place for the selection of justices was the intent of the founders, for as Alexander Hamilton put it, "The exercise of its [appointment] by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else… The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men." Qualification, as opposed to popularity, was designed to be the main determining factor, so by appointing a man such as Merick Garland, who has an unquestionable degree of experience and competency, Obama is challenging the ideological stance of the Republican party, which forces them to either stay true to the ideology Scalia fought so hard for or reveal that it all just political, a mild lose-lose situation.

Anonymous said...

I really like what Langston had to say about Obama challenging the Republicans on this issue. In 2010, Orrin Hatch, the Presidential Pro Tempore, said “The president told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him. [Obama] could easily name Merrick Garland, who is a fine man". Orrin Hatch mentions Merrick Garland by name and now he is opposing to even have a debate on whether or not Mr. Merrick should be considered for the bench. There is almost no question that the Republicans are placing their party over a functioning federal government. However, what I find more troubling than Republican obstructionism is the lack of push from the media for the Republicans to do their job. The Republican party, the party that always harps away about the Constitution, is ironically neglecting their own Constitutional duty. Obama has 10 more months of President and it is his job to choose a Justice when a seat is vacant. Choosing a Justice during an election year would not even be unprecedented. Since 1900, 6 Justices have been placed on the SCOTUS.

Huayu Ouyang said...

I do not think that McConnell's response to try to obstruct the hearing and the vote is justified because even though it is Obama's last year of presidency, he is still the president and still has the constitutional duty to be able to nominate a Supreme Court justice and the senate still has to uphold its constitutional duty to hold a hearing and a vote for the nominee. I think that the Republicans are banking on a Republican win in November so that they can get a conservative nominee, but there is also the real possibility that a Democrat may win in November, which would probably result in an even more liberal nominee than Garland. I think that voters should definitely take the vacancy into account, not just for the presidential race but also for the congressional races because if voters don't like that their senator is against having a hearing, they should make their voice heard in the upcoming elections.

Emily Shen said...

I think Garland was a wise choice for the nomination because of his reputation. He is not just a moderate — he is also someone who is willing to listen to the opinions of others in order to reach a consensus, and since the Supreme Court is supposed to be an apolitical body, he would be a great addition since the concern is that the 9th justice would swing the vote one way or another.

“The essence of who you are is who you are at an early stage,” said Abbe D. Lowell, a Washington lawyer who worked alongside Mr. Garland as a fellow assistant to Mr. Civiletti. “Not only is he book smart, but he’s really able to use all of that intelligence to forge consensus.” (from

Obama has shown that he is willing to concede. Not only is his choice a moderate, he is also someone who is even older than the chief justice, implicitly sending a message that Obama is not here to be difficult. He has thrown down the gauntlet to the Republicans. If they still refuse to hear him in the Senate, they will look more obstructionist than ever.

Jared Mayerson said...

I have to respectfully disagree with Daniel. First off, President Obama has more than a year left of his term. That is not a small percentage left of his term, that is over a fourth left. In addition, no, it does not make sense for the next President to choose because the people of America have already spoken on who they want less than three years in 2012 and again in 2008. I'm pretty certain that the American public agrees with and approves President Obama's actions. Senate Majority Leader Mitch McConnell does not get a larger say than the amount of United States citizens that voted for President Obama in 2012. That in itself is unconstitutional. He is using flawed logic that the constitution allows him to completely refuse to hear any nomination President Obama has to offer. However, it is President Obama's constitutional duty to nominate a Justice and it is the Senate's duty to advise and make a decision whether or not to confirm the appointment-not ignore it all together. I understand that the Republican party wants a Justice that shares their ideology but no one chooses when a Justice dies. It is a very unfortunate occurrence but it's one that needs to be promptly followed by a nomination.