Selling Merrick Garland

Senate Democrats seem to be tailoring their message to voters ahead of November’s election.

Merrick Garland and Patrick Leahy  (J. Scott Applewhite / AP)

Senate Democrats want to make sure the public gets to know Judge Merrick Garland, even if their Republican colleagues aren’t planning to proceed with his Supreme Court nomination. But as the likelihood of changing Republican hearts and minds diminishes, the senators’ maneuvering increasingly seems like pre-election messaging to voters: If you’re satisfied with Republicans holding up Garland’s nomination, so be it. If you aren’t, vote Democrat.

There is little to no doubt that Senate Democrats believe Garland is a very qualified jurist, and obviously the leader of their party, President Obama—who nominated the D.C. Circuit chief judge in March—thinks so, too. But they have also worked the political angles at play: From press conferences, to long Senate-floor speeches, to a forum they held Wednesday, senators have woven together praise for Garland as a nominee with condemnations of Republican obstructionism. And where they previously focused on the Senate fulfilling its constitutional duty, lately they seem more eager to target public interest.

The latest move in their pro-Garland campaign was the event Wednesday morning, which featured testimony from character witnesses who know and have worked with Garland. Such testimony is typical during Supreme Court confirmation hearings, but because Garland’s nomination is stalled, neither he nor his close associates have had a high-profile venue for advocacy.

Judiciary Committee Ranking Member Patrick Leahy opened the meeting with a line summing up the Democrats’ months-long effort: Republicans aren’t doing their job, but “that doesn’t mean that we Democrats will stop doing ours,” he said. Democrats and their private-sector allies have been pushing this concept hard in recent months, particularly in the battleground states where Democrats could have a shot at winning Senate seats. They are hoping the Garland controversy, combined with the potentially toxic candidacy of Donald Trump, could push Americans in Democrats’ direction and help the party win a Senate majority.

On Wednesday, the witnesses had glowing things to say about Garland’s mind, work ethic, and personality. Donna Bucella, a former U.S. attorney, talked about working with Garland on the Oklahoma City bombing case. While in a lighter moment, a former Garland clerk, Justin Driver, spoke of the judge’s analytic take on the merits of Maroon 5. But some testimony made the Democrats’ case to the American people more directly: “I believe that it is the responsibility of the U.S. Senate, just as it is the responsibility of citizens of this country, to rise above these petty self-interests and to act with honor and decency,” said former Third Circuit Judge Timothy Lewis. “The decency to provide a hearing, and let the American public view Judge Garland under questioning, vetting fully. At a minimum, [it] is the decent thing to do.”

Garland has not yet appeared in a public hearing, but that does not mean he has been inactive. The judge has been meeting constantly with Republican and Democratic senators, and recently he completed a 141-page questionnaire on his background for the Judiciary Committee. The New York Times noted that Senate Democrats held a photo-op with copies of the survey, “another opportunity to slam Republicans for blocking the Garland nomination—this time with props.”

Detractors might view Wednesday’s forum as similarly gimmicky, even as Leahy framed it as an opportunity to give Garland’s proponents a voice. His record is “being smeared by outside groups,” Leahy said, and Senate Republicans have offered no venue for Garland and his supporters to respond. New York’s Chuck Schumer said the witnesses were thus “allowing the public to see what we senators, who have had a chance to meet Merrick Garland, have seen: just what a fine jurist he is, what a fine judge he is, and what a fine individual he is. And the fact that now the public can share some of that, I think is extremely important.”

The testimony was also something of a throwback, suggested Lori Ringhand, a University of Georgia Law School professor, ahead of the meeting. She told me in an interview that until 1939, Supreme Court nominees did not testify on their own behalf and that character witnesses “really defined” a person’s nomination. Wednesday’s event “is taking us back to pre-1939,” when “all of the story was told by these proxies.”

The proxies also lend legitimacy to the Senate Democrats’ mission. After all, when politicians and the White House advocate on Garland’s behalf, it’s one thing; but listening to people who know him well is another. In lieu of testimony from the nominee himself, Democrats are working to get pro-Garland messages directly to the public by any means necessary. Even if voters do not hear from Garland in the weeks and months to come, perhaps they will have heard enough to choose his Senate defenders when they hit the ballot box next fall.