Judge Merrick Garland is returning to his work on the Court of Appeals for the D.C. Circuit, his nomination for the Supreme Court killed without a vote by a Republican Senate majority more concerned with partisan politics than with doing its job.
The behavior of those who disposed of his nomination stands in sharp contrast to his own record and reputation as a nonideological judge.
Judge Garland is a moderate jurist with a reputation for careful reasoning. Mere days before President Barack Obama announced Judge Garland’s Supreme Court nomination, Sen. Orrin Hatch, a Republican from Utah, told a conservative news site that if the president wanted to pick a moderate, he “could easily name Merrick Garland, who is a fine man.”
But Senate Majority Leader Mitch McConnell had already announced, in February, that his caucus would block any Obama nominee. “This vacancy,” he said, “should not be filled by this lame-duck president.” So the Senate refused even to hold hearings on Judge Garland’s nomination.
The argument that the president was a lame duck, so therefore his Supreme Court nominee should not get a hearing, is both disingenuous and irresponsible. Mr. Obama had a year left in his term. And presidents have their full constitutional authority until noon on Inauguration Day. They must perform all of their duties until then.
Granted, a president must nominate justices the Senate can reasonably be asked to confirm. He can’t ask a Senate dominated by the other party to confirm someone whose judicial philosophy could appeal only to someone who shares the president’s politics. He must, when facing such a Senate, choose someone toward the middle.
Mr. Obama did that. He did his job. He picked the very judge Mr. Hatch said would be a moderate choice. The Senate did not do its job. Its refusal to confirm Judge Garland was not based on any flaw in the nominee’s character, any deficit in his abilities or even any disagreement with his jurisprudence. It was pure partisan politics: Senate Republicans wanted to let a Republican president fill the vacancy. And they’re going to get their way.
But this refusal of the U.S. Senate to do its duty cost a good man a fair hearing. More important, it also cost the nation a potentially fine justice — one more faithful to the law than one of the political parties or a particular judicial ideology.
As a result of this abdication of responsibility, it will be harder to get justices like that in the future.
Indeed, the Senate has established a terrible precedent that makes it less likely that any president will be able to get a Senate controlled by the other party to confirm his Supreme Court nominees, however wise and well-qualified.
This was a study in Washington politics at its worst — political and constitutional malpractice — and it will have a lasting consequence.