The GOP and Merrick Garland: Democracy or Obstructionism?

McHenry Lee, JHU:

The passing of Justice Antonin Scalia could not have come at a worse time for the Grand Old Party. With the slim conservative majority on the court suddenly gone, President Obama had the chance to alter the power dynamic of the judicial branch for the next generation. Congressional Republicans understandably feared the worst, expecting the President to nominate a progressive favorite along the lines of someone like Loretta Lynch. Spearheaded by Senate Majority Leader Mitch McConnell, the GOP battened down the hatches and promised not to consider a nominee until the American people voted in November. But then something strange happened. Whether he was trying to bridge the seemingly cavernous partisan divide in DC or he wanted to put forth a nominee that the GOP would have trouble rejecting, President Obama proposed a moderate judge from the DC Circuit Court of Appeals named Merrick Garland.

Many progressives were outraged over the choice, criticizing the President for bending over backwards to cooperate with Republicans. However, the GOP saw it differently. Despite Garland’s reputation as a centrist judge, McConnell and Republican leadership doubled down in hopes that the GOP would win back the Oval Office in November. However, in light of the President’s nomination, this strategy creates several clear conundrums for Republicans.

First and foremost, Congressional Republicans have to consider Garland in the context of the likely general election matchup between Donald Trump and Hillary Clinton. By blocking any Obama court nominee, GOP leadership is in essence giving either a President Trump or a President Clinton the task of filling the vacancy. This is obviously a dangerous approach given that most polls predict Clinton routing Trump in November. A Clinton White House would likely nominate a younger more liberal justice who could swing the ideological balance of the court for a generation. Republicans might not even have much of a say in the confirmation process, as control of the Senate could swing democratic in November. If Clinton somehow loses, Donald Trump has promised to appoint conservative appellate judges like Bill Pryor or Dianne Sykes. However, any Trump promise is suspect given his lack of ideological consistency. The Donald has a history of flip-flopping on key conservative issues and Senate Republicans should not bank on a President Trump suddenly finding a newfound appreciation for constitutional principles. For all we know, he could end up nominating his sister who currently sits on the Third Circuit court of appeals. There is also the possibility that Ted Cruz wins the nomination, but he is faring just as poorly in general election polls against Clinton.

Secondly, there is the Constitutional issue. Although Senate Republicans have no obligation to support the President’s nominee, they do have a constitutional responsibility to consider him. Article II, Section 2, Clause 2 of the Constitution gives the Senate the duty to “advise and consent” the President on judicial appointments. Historical precedent has dictated this means that the Senate publically questions any nominee. Since Justice Scalia was well known for his devotion to strict-constructionism, Senate Republicans would best honor his legacy by fulfilling this clear constitutional duty. This approach would also provide vulnerable Republican senators facing re-election with valuable political cover against charges of obstructionism, a tactic that wasn’t lost on Kelly Ayotte of New Hampshire and Mark Kirk of Illinois when they broke with the party line. Also, If Scalia’s seat remains vacant, the court will likely split 4-4 on many decisions. This could cause an unprecedented constitutional crisis in the Judicial Branch, with Republicans bearing the brunt of the blame.

Republican lawmakers have also repeatedly praised Garland in the past, making their current stance seem somewhat hypocritical. For instance, Senator Orrin Hatch, the Chairman of the Senate Judiciary Committee, once praised Garland as:

“Highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be questioned…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.”

Hatch even said the Garland would be “confirmed virtually unanimously” when his name surfaced in rumors about the court vacancy in 2010. However, Hatch has seemingly changed his tune. Like many of his colleagues, the Senator from Utah now refuses to even consider the man he once called highly qualified, citing a comment made by Joe Biden in 1992 supporting delaying court appointments until after the upcoming election. Although Biden did in fact make that very statement, it’s far from a noble precedent to follow.

On a more positive note, the vacancy gives Congress a chance to put governing ahead of political squabbling. This was exactly what Chief Justice John Roberts prophetically called for just days before the death of Scalia while discussing the partisan confirmations of Justices Alito, Kagan and Sotomayor.

“Look at my more recent colleagues, all extremely well qualified for the court, and the votes were, I think, strictly on party lines for the last three of them, or close to it, and that doesn’t make any sense. That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.”

Although this notion might be somewhat naïve, Roberts believes that the court should be free of political influences. A clearly qualified nominee should be able to breeze through the confirmation process, no matter their political beliefs. Just like his three predecessors, Garland is more than competent for the position, having served as Chief Judge of the second most powerful court in the nation. This makes the Republican stance appear to be based purely on partisan principle. However, Republicans do have some legitimate disagreements with Garland on policy.

McConnell and the GOP have genuine differences with Garland on labor, 2nd amendment and environmental cases. In his stint on the DC Circuit Court of appeals, Garland sided with National Labor Relations Board (NLRB) in 18 of 22 cases. He was also well known for upholding the Obama administration’s legal authority to enforce higher EPA emissions standards. Furthermore, Garland also upheld the DC handgun ban, a ban that was eventually ruled unconstitutional by the Supreme Court in DC vs. Heller. If Garland were to replace Scalia, the Heller decision faces the risk of being overturned which would mark a huge setback for gun rights advocates. However, conservatives should take note that Garland has a history of issuing strong decisions in criminal cases and also ruled that the federal courts system had no right to hear cases from Guantanamo detainees. Although his decisions have leaned slightly left, his description as a centrist is accurate.

At the very least, Senate Republicans have a constitutional obligation to hold hearings on Garland, something that the American people overwhelmingly support. Blocking the start of his nomination process only adds to the divisiveness and demagoguery that DC is so well known for, feeding the notion that the GOP is the party of obstructionism. However, Republicans should consider going even further. Despite his labor and environmental record, Merrick Garland represents a best-case scenario choice for Republicans. President Obama likely will not nominate a more moderate candidate and a GOP victory in November is starting to look bleak. If they continue to stall, Hillary Clinton may ultimately have the opportunity to nominate a more liberal justice next year, with perhaps with the backing of a Democratic senate. In a vacuum, Merrick Garland is far from a conservative’s ideal replacement for Scalia. However, Republicans should count their blessings given current political circumstances.

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