US Senator Chuck Schumer meets with US Supreme Court nominee Merrick Garland at the US Capitol
Partisan hostility is a regrettable feature of contemporary American politics. Over the past few years, Republicans and Democrats have found reason to argue over a variety of issues, including government spending, foreign policy, gun control, same-sex marriage, and healthcare. Perhaps it should be no surprise, then, that this aisle-crossing acrimony has recently enveloped the least political branch of the United States government, the Supreme Court. Last week, President Barack Obama nominated US Court of Appeals Judge Merrick Garland to the Court despite vehement protests from Republican leaders. In an effort to prevent another Obama appointee from reaching the bench, Senate Republicans have vowed not to grant Garland a nomination hearing needed for Senate confirmation. This is an unfortunate decision. The Senate’s refusal to hold a nomination hearing for Garland is not only injurious to American governance, but politically disadvantageous for the Republican Party.
Merrick Garland: The Moderate
By most accounts, Merrick Garland is a fairly moderate, even-handed judge who stresses meticulous legal scholarship over ideology in his decisions. His judicial record shows that he leans to the left on cases involving labor law and employment discrimination, though he typically takes a more conservative stance on issues relating to criminal justice. In general, he tends to defer to executive agencies and legal precedent in his interpretations of statutes. Garland’s penchant for judicial restraint and impartiality has won him bipartisan backing in the past, most notably in his 1997 confirmation to the US Court of Appeals for the District of Columbia Circuit by a Republican Senate. With this record of support and his reputation for political moderation, Garland appears to be a rather benign candidate to succeed the late Justice Antonin Scalia. As is often the case, however, party politics have complicated this situation and cast serious doubt on Garland’s nomination.
Nominating Garland was both a reasonable administrative decision and a shrewd political maneuver on the part of President Obama. Confronted with a vacancy on the Supreme Court, it was Obama’s executive obligation to appoint a new associate justice. In Garland, Obama found a well-qualified, slightly liberal judge with the potential to shift the ideological balance of the Court to the left for the first time in decades, but who is not so liberal as to invite an immediate rejection from a rational Republican Senate. Unfortunately for Garland, American politicians rarely act rationally.
The Republican Miscalculation
Over three weeks before Obama selected his Supreme Court candidate, Republican senators announced their intentions to obstruct the nomination by not holding confirmation hearings. In doing so, they sought to prevent the “lame duck president” from appointing another liberal Supreme Court Justice. This political strategy was deeply flawed from the outset. By announcing their intentions to block Obama’s nomination early, the Republicans essentially bound their own hands politically. They publicly committed themselves to opposing Obama’s nominee and now risk a serious loss of face should they reverse course. In this manner, the Republicans ceded almost all political leverage to Obama: Knowing that the Republicans would thwart the nomination, Obama was free to select a centrist candidate who would realistically satisfy both parties. If the Republicans were to follow through with their obstruction, Obama could easily fault them for being unrealistic and unyielding. If they were to instead confirm the nominee, they would appear capricious and untrustworthy. In both cases, Obama and his Democratic Party would achieve a significant political victory in the midst of a contentious presidential election.
Furthermore, the rationale that the Republicans use to support their actions is simply invalid. Senate Majority Leader Mitch McConnell contends that the Senate must block the nomination before the 2016 presidential election to “give [the American people] a voice” in the appointment. This argument is founded on two false premises. The first states that the American people should have a voice in Supreme Court appointments. Even a cursory reading of the US Constitution indicates that the framers designed the judiciary in such a way as to insulate it from popular influence. Indeed, it appears that the framers actively sought to exclude the American masses from influencing appointments, contrary to McConnell’s reasoning.
The second premise of McConnell’s argument maintains that the American people do not currently have a voice in the appointment. This is necessarily false. If the first premise is disregarded, then we can conclude that the people have an indirect voice in Supreme Court appointments via election of the president. (There would otherwise be no reason to delay the appointment until after the 2016 presidential election.) An American president is voted into office for a four-year term and is entrusted to exercise presidential authority throughout that term. When the American people make their voice known via presidential elections, this voice and the views it espouses must stand throughout those four years. Otherwise, the president would regularly lose his representative authority prior to the end of his term, and the US Constitution would be woefully misguided in requiring four-year presidential terms. The four-year presidential term is not a point of contention in American politics, so this second premise is false regardless of the validity of the first premise.
Although McConnell’s justification for blocking the nomination is unfounded, the Senate nevertheless has constitutional means to bar Garland from the Supreme Court. Judicial appointees require confirmation from the Senate to take office, and the Senate can (and does) withhold its confirmation on partisan grounds. It could certainly do so with Garland, but this action may hurt the Republican Party’s political standing in the long run. Donald Trump and Hillary Clinton are poised to win the Republican and Democratic presidential nominations, and at present Clinton enjoys an impressive lead over Trump in general election polls. Should Clinton win the November 2016 election, she may choose to nominate an overwhelmingly liberal candidate to the Supreme Court instead of the moderate Merrick Garland. In this case, Republicans in the Senate would have no political justification for blocking Clinton’s nomination: In the words of Senator McConnell, the American people will “[have had] their say” on the appointment by electing a liberal, Democratic president.
The Partisan Divide
Barring a seismic shift in electoral politics, it would be prudent for Senate Republicans to confirm Merrick Garland and allow him to take his seat on the Supreme Court. Although the Republicans would surely be criticized for their fickle behavior, they should also be praised for their fairness and their ability to transcend petty political squabbles. At minimum, the Senate should hold confirmation hearings for Garland. Even if the Republicans were to block Garland’s nomination after holding hearings, they would still gain political capital by introducing some flexibility and civility into party politics.
Considering their present stance on Garland’s nomination and their apparent obstinacy, I do not expect Senate Republicans to reverse course on the appointment. As such, they risk not only political backlash, but short term impairment of the US judicial branch. (We are likely to see more split Supreme Court rulings in the near future.) Senate Republicans are indeed in the wrong on this issue. Nonetheless, Democrats would do well to remember their role in obstructing past Supreme Court appointments. In fact, neither party has a strong record of dispassionately considering Supreme Court nominees. With this in mind, we see that the debate surrounding Garland’s nomination is simply a sign of the worsening partisan divide in American politics. Polarization is a persistent trend, and one that promises to hinder American governance at a time when responsible leadership is sorely needed. Indeed, bipartisan cooperation is crucial for the United States to confront the serious issues it faces. The present Supreme Court controversy suggests that the prospects for political détente are slim at best.
Todd Lensman is a freshman in the College of Arts & Sciences at Cornell University, majoring in Mathematics and Economics.
Image Attribution: “Senator Chuck Schumer meets with Merrick Garland” by Senate Democrats, licensed under CC BY 2.0