The Senate Republican blockade of the Supreme Court is holding—for now.
Within moments of President Obama’s announcement that he was nominating Judge Merrick Garland to replace the late Justice Antonin Scalia on the high Court, top Republicans reiterated their longstanding vow to ignore him. “It is a president’s constitutional right to nominate a Supreme Court justice, and it is the Senate’s constitutional right to act as a check on a president and withhold its consent,” Senate Majority Leader Mitch McConnell said in a floor speech minutes after Obama and Garland finishing speaking in the White House Rose Garden.
Other senior GOP senators backed McConnell immediately, issuing statements that appeared to be written weeks ago, with Garland’s name added at the last minute. Some didn’t even mention him at all, and that was by design: Where Obama is trying to sell Garland based on his impeccable legal résumé, his judicial centrism, and his selfless devotion to public service, Republicans have committed to opposing him solely on the argument that the presidential election should determine who fills Scalia’s seat. Invoking a 24-year-old speech by Vice President Biden, McConnell said the GOP’s position was “about a principle, not a person.”
In choosing Garland, Obama hopes he is making Republicans an offer they can’t refuse. He bypassed more diverse and clearly progressive choices likely to inspire the Democratic base in favor of a 63-year-old white man who in 2010 had been held up by Senator Orrin Hatch, a senior Republican on the Judiciary Committee, as “a consensus nominee” for the Supreme Court. Six years later, the president called his bluff. “I think highly of Judge Garland. But his nomination doesn’t in any way change current circumstances,” Hatch said in a statement. “I remain convinced that the best way for the Senate to do its job is to conduct the confirmation process after this toxic presidential election season is over.” Hatch was one of seven Republicans currently serving in the Senate who voted to confirm Garland to his current post on the Courts of Appeals for the D.C. Circuit. He was a nominee of President Clinton, and the full vote was 76-23.
Senator Charles Schumer, a New York Democrat and the party’s leader-in-waiting, seemed to sum up Garland’s centrist credentials when he said, “If Merrick Garland can't get bipartisan support, no one can.”
While some pundits had predicted Obama would pick a more liberal choice to energize Democrats in the election, McConnell argued the opposite. Knowing that Republicans would oppose whoever he chose, McConnell suggested, Obama instead picked someone he didn’t even want to see on the Court. “It seems clear that President Obama made this nomination not with the intent of seeing the nominee confirmed but in order to politicize it for purposes of the election,” he said.
The wild card in the Supreme Court fight is—who else?—Donald Trump. By dividing Republicans so deeply in his march toward the party’s presidential nomination, Trump could give Garland a bit more hope of confirmation. Already on Wednesday, conservatives who believe the GOP is doomed with Trump leading its ticket this fall were suggesting that the Senate confirm Garland once Hillary Clinton wins the election but before she has the chance to nominate someone more liberal. For his part, Hatch told reporters he’d be open to considering Garland in a lame-duck session of Congress, but other Republicans stuck to their position that the nomination should be made by the next president. Both Clinton and Bernie Sanders issued statements supporting Garland, choosing to line up behind Obama rather than push for a more liberal nominee or the chance to pick one themselves.
The immediate goal for Democrats, however, is breaking the Republican blockade, and there were a few early cracks on Wednesday among rank-and-file lawmakers. Senator Mark Kirk, a vulnerable Illinois Republican up for reelection this year, said he would judge Garland on the merits. (Garland was born in Chicago.) Republican Senators Jeff Flake of Arizona, James Inhofe of Oklahoma, Susan Collins of Maine, and Kelly Ayotte of New Hampshire, who is also on the ballot this year, said they would at least meet with Obama’s nominee.
At the White House, Obama lauded Garland as a public servant, noting not only his work as chief judge on the Court of Appeals for the D.C. Circuit but also his success in prosecuting Timothy McVeigh for the Oklahoma City bombing. The president read off a list of compliments from top Republicans and conservatives, including from Chief Justice John Roberts. And he concluding by pleading with the Senate to give Garland “a fair hearing.”
I simply ask Republicans in the Senate to give him a fair hearing, and then an up or down vote. If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair. It will mean everything is subject to the most partisan of politics—everything. It will provoke an endless cycle of more tit-for-tat and make it increasingly impossible for any president, Democrat or Republican, to carry out their constitutional function. The reputation of the Supreme Court will inevitably suffer. Faith in our justice system will inevitably suffer. Our democracy will ultimately suffer, as well.
Garland choked up as he called the nomination “the greatest honor of my life—other than Lynn agreeing to marry me 28 years ago.” He’ll have his chance to make his case to senators directly on Thursday, when he heads to Capitol Hill to begin customary introductions with lawmakers.
The Supreme Court sits just across the street from the Capitol, holding an empty seat that Judge Garland may or may not get to fill. If Wednesday’s statements are any indication, he may get a few meetings with Republicans, but it still seems unlikely he’ll get what he really needs: a vote.