Poor Merrick Garland

What's Going On? | Jeff Melsheimer | March 17, 2016

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Yesterday afternoon, President Obama nominated Merrick Garland to take Justice Antonin Scalia’s spot on the Supreme Court. This came after a long vetting and interview process where Obama pledged to nominate a justice who wouldn’t be controversial and easily confirmable. Obama hopes to leave the final mark on his presidential legacy by nominating a third and final justice for the Court.

Almost undoubtedly, Garland will never see the Supreme Court as a jurist, at least not while President Obama is in office, despite being quite possibly the most qualified candidate EVER. Who exactly is this guy?

Merrick Garland is one of the most well respected men in Washington. He serves on the United States Court of Appeals as the Chief Judge for the D.C. Circuit and has presided over that same court for the past 19 years. Prior to serving as a judge, he attended Harvard for both law school and undergrad. He also clerked on the Supreme Court for Justice William Brennan, one of the most influential judges in American history. Garland has worked both in private practice and for the government, working as a top federal prosecutor. His most well-known case involved the Department of Justice’s response to the Oklahoma City Bombing, where he oversaw the prosecution of Timothy McVeigh.

In other words, Merrick Garland is too qualified. He has seen the Supreme Court firsthand, he has served the federal court system for nearly two decades, and he was educated at perhaps the best law school in the nation. The guy is even a centrist, meaning he is not too right or left leaning, but instead has fairly moderate political views. A quick look back at his 1997 Senate confirmation in 1997 for the DC Circuit appeals court shows his degree of support: he was confirmed by a vote of 76-23, with seven Republicans having voted for him who are still serving terms in Congress. Surely Garland would win the nomination? Think again.

Mitch McConnell, Senate Majority Leader, has already vowed to stop Obama’s nomination of Garland. In fact, McConnell won’t even allow for a hearing to take place to consider Garland’s nomination. His reasoning is grounded in the idea that because it is an election year, the American people should be able to have a voice in the judicial nomination process through their selection of a president. Although Merrick Garland is perhaps the most experienced, knowledgeable, and respected nominations in recent years, McConnell and the Republican controlled Senate will block any attempt to confirm him, and that is upsetting.

My first problem with McConnell’s reasoning is that it politicizes one of the most important democratic institutions that is in fact not supposed to be politicized. The Supreme Court was established by the framers of the Constitution in order to have an independent judiciary where its judges would be shielded from public opinion and withdrawn from the electoral process. Now of course a Supreme Court nomination will always be a tough political battle between the President and Congress (especially when they are of opposing parties), as presidents often seek judges that align with their political views in order to protect controversial legislation and uphold their personal political ideologies. However, using the American people to decide this position through the candidate they choose undermines the entire belief that judicial decision-making is based on Constitutional paradigms and not popular support.

Second, McConnell’s rejection of Obama’s nominee only furthers the notion that government is marred by inaction and gridlock. Take a look at the number of laws passed by Congress over time, which have been dwindling at a severe rate since World War II. And it’s not like Congress is running out of bills to pass, they are instead impaired by a variety of factors including party politics, the need to satisfy constituents, and the filibuster, all of which are major consequences of an elected legislature that the Founders could not have foreseen. I believe that the reason Donald Trump is resonating with so many voters is because they are tired of an inactive Congress and believe he can get stuff done. It is rhetoric like McConnell’s refusal to work with Obama that perpetuates such anti-government sentiment.

My final problem is that Merrick Garland really is the GOP’s best option. First, the Democrats could win back the Senate, leaving the GOP completely powerless in determining the next justice. Many Republican Senators from Democratic states that won election in 2010 will be up for reelection this year. Even worse, it has becoming increasingly likely that Hillary Clinton will win the nomination and probably the presidency. Combine these two and the GOP will have shot itself in the foot as Democrats will be free to put just about anyone they want to sit on the Court for years to come. Perhaps the “best” scenario for the GOP would be if Trump won the election. He has been quite unpredictable and could easily lose his first political battle in office by nominating a wild card justice, but if I were a betting man I might put my money on his sister as Trump’s choice for the Supreme Court nomination. Regardless if he was serious about that, Republicans must reevaluate if they are willing to gamble on such an important issue.

It’s too bad his odds of confirmation are small. Come on, the name Merrick Garland just sounds like he is destined for the Supreme Court.