President Barack Obama did his duty under the Constitution by submitting to the Senate his nominee — Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit — to fill a vacancy on the Supreme Court.
The Senate, despite its Republican leaders’ vow to do otherwise, must now perform its role and take up the appointment.
The seat became open with the death of Justice Antonin G. Scalia. Judge Garland, who has been on the appeals court for 19 years with three as chief judge, has a reputation as a moderate who is tough on criminal justice. He grew up near Chicago and graduated from Harvard University and Harvard Law School. After years in a private law firm, he became a prosecutor in the Justice Department, where he managed the case against the Oklahoma City bombers in 1995, then oversaw the investigation of the “Unabomber.”
The choice of Judge Garland, 63, has put Senate Republicans on the spot. Majority Leader Mitch McConnell declared (as recently as Wednesday) that the Senate will not meet with an Obama nominee, much less allow the Senate to vote on the appointment. GOP senators want to leave the seat unfilled until after the November election, in the hopes that a Republican will be elected president and nominate a conservative.
Yet Republicans have praised Judge Garland’s ability over the years. Sen. Orrin Hatch of Utah, the longest-serving Republican on the Judiciary Committee, said in 2010 that Judge Garland could be a “consensus nominee” for the high court who would be confirmed; last week the senator called him “a fine man.” Sens. Chuck Grassley of Iowa and Jeff Sessions of Alabama, plus former Oklahoma Gov. Frank Keating, also have applauded Merrick Garland’s work. When the judge stood for Senate confirmation in 1997, he was approved by a 3-1 margin.
Now Senate Republicans are putting bald politics above a constitutional duty, inviting an eight-member Supreme Court to deadlock 4-4 on major issues for 10 months or more. It is a naked attempt by a self-neutered legislature to hamstring the third branch of government.
What the Senate must do instead is hold the requisite committee hearing on Judge Garland and then take a floor vote on whether it considers him qualified. If Republican senators, including Pennsylvania’s Pat Toomey, refuse to do their duty, voters will hold them responsible.