Will Merrick Garland Be Nominated Again

Merrick Garland was nominated to the Supreme Court by President Barack Obama in March 2016. The Senate never voted on his nomination. Scrap Somodevilla/Getty Images hide caption

toggle caption

Chip Somodevilla/Getty Images

Merrick Garland was nominated to the Supreme Court by President Barack Obama in March 2016. The Senate never voted on his nomination.

Chip Somodevilla/Getty Images

So much has happened in the past two years that many may have forgotten what happened to Merrick Garland in the spring of 2016.

But filling in that recollection goes some distance in explaining a lot of what has happened since.

To recap, Garland was nominated to fill the 2016 vacancy on the Supreme Courtroom created by the death that Feb of Justice Antonin Scalia, an icon of conservative jurisprudence.

President Barack Obama quickly named Merrick Garland, then 63, to fill the seat. Garland had long been considered a prime prospect for the high courtroom, serving as chief guess on the U.South. Court of Appeals for the Commune of Columbia Excursion — a frequent source of justices that is sometimes called the "little Supreme Courtroom."

Widely regarded as a moderate, Garland had been praised in the past past many Republicans, including influential senators such as Orrin Hatch of Utah.

But even before Obama had named Garland, and in fact simply hours after Scalia'southward death was announced, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void. He said the adjacent Supreme Court justice should be called by the side by side president — to exist elected after that year.

"Of class," said McConnell, "the American people should have a say in the court'southward direction. It is a president'south constitutional right to nominate a Supreme Court justice, and it is the Senate's ramble right to act as a check on the president and withhold its consent."

Supreme Court picks take often been controversial. There take been contentious hearings and floor debates and contested votes. But to ignore the nominee entirely, as if no vacancy existed?

There was no precedent for such an action since the catamenia around the Civil War and Reconstruction. No Democratic president had made an appointment while Republicans held the Senate since 1895.

In a speech that August in Kentucky, McConnell would say: "One of my proudest moments was when I looked Barack Obama in the heart and I said, 'Mr. President, you volition not fill the Supreme Court vacancy.' "

McConnell was not lonely. The xi Republican members of the Senate Judiciary Committee signed a letter saying they had no intention of consenting to whatsoever nominee from Obama. No proceedings of whatever kind were held on Garland's appointment.

The court had to convene that October with only eight justices, divided often betwixt the four appointed by Democrats and the four appointed by Republicans. Curt-handed, the court deadlocked on a number of issues and declined to hear others.

Democrats were outraged, of course, but were short of tools with which to respond. Equally the minority political party — following a disastrous midterm in 2014 — they could not force a commission or a flooring vote. They gave speeches, and they urged voters to turn out in protest in the Nov elections.

Scores of scholars — law professors, historians and political scientists — urged the Senate to at least have a process for Garland equally a duly appointed nominee with impeccable qualifications. But some lawyers and academics pointed out that the Constitution empowered the Senate to "suggest and consent" but did not require it practice so. (Some adding that they thought the Senate still ought to do so.)

A federal lawsuit was filed to compel McConnell to concur a vote on Garland. It was thrown out considering a approximate said the plaintiff, as an ordinary voter, had no standing to sue.

For his office, McConnell argued that the Democrats had at least contemplated a like tactic back in 1992, when Obama'due south vice president, Joe Biden, was chairman of the Senate Judiciary Committee and mused about urging President George H.Due west. Bush to withhold any nominees to the high court until the cease of the "political flavor."

At the time, the Senate had only been through a bruising battle over the 1991 confirmation of Justice Clarence Thomas.

As it happened, no vacancy occurred in 1992. Simply McConnell and others referred to the "Biden rule" however in justifying the blockade of Garland.

With or without such justification, McConnell's occludent was doubly effective merely as a power move.

First, it prevented the seating of a Democratic president's choice. Had he been considered, Garland might accept pulled a few majority-political party members across the alley. Supreme Courtroom nominees nigh always win at least some votes from the party opposing the president, and Garland had a strong police-and-club history. Had he performed well on Television set, voting against him might have been harder — particularly for Republicans seeking re-election in competitive states.

Second, and more important, the vacancy became a powerful motivator for bourgeois voters in the fall. Many saw a vote for Trump as a means to keep Scalia'southward seat away from the liberals and requite the appointment to someone who promised to proper name anti-ballgame justices supportive of 2nd Amendment gun rights.

Over again and again in the fall, candidate Donald Trump treated the Supreme Court as a touchstone, sometimes simply shouting the two words to his rally crowds. And indeed, polling has shown the courtroom vacancy did mean a bang-up bargain to Trump voters, peculiarly those religious conservatives who had personal misgivings about him.

Now, of course, McConnell's calculus has changed. With a slim but steady majority of the Senate, and Vice President Mike Pence available to break a tie, McConnell feels confident he can confirm Trump's nominee and go his people out to vote once more — this fourth dimension, in gratitude.

Democrats run into all this as what their Senate leader Chuck Schumer called "the meridian of hypocrisy." Only volition that movement voters in their direction more now than it did in 2016 or motivate the disaffected inside their base?

Some say the Democrats hurt themselves 2 years agone, first with a nominee who would not excite the party's base of operations. Whatever his evident virtues, Garland was another white male who, as a 63-year-old moderate, could non promise decades as a liberal warrior.

In that location is also ample evidence that the Supreme Courtroom motivates conservatives more than it does progressives. That has often been the example since the Roe v. Wade abortion legalization conclusion in 1973 launched an era of social upshot backlash that divide the old Democratic coalition.

It besides has been argued that the Democrats caved to McConnell's pressure tactics in the Garland example. They should accept establish a fashion to force a vote or "shut down the Senate" to light a spark.

But Democrats are generally averse to regime shutdown strategies, especially considering the potential blowback on their own candidates. In 2016, it was notwithstanding the Obama era and the Democrats' executive administration. Shutdowns rarely aid the party perceived to be in power, even if it'due south not actually in control.

So information technology was safer, in the judgments of spring and summertime 2016, to let the Republicans look intransigent and unfair and promise somebody noticed. Maybe the injustice to Garland would assist Democrats win seats in supposedly blue states such equally Wisconsin and Pennsylvania, and even red ones such as Missouri and North Carolina.

Instead, the country moved on. At that place were highly contentious primaries in both parties and plenty of other news to preoccupy everyone.

Likewise, and lest we forget, the Senate Democrats and nearly everyone else thought they had an insurance policy on the Scalia vacancy. The assumption was that Hillary Clinton would exist elected. Clinton, who did, after all, win the popular vote by several 1000000 votes, might even have helped carry in a Democratic Senate. So she could have renominated Garland, or someone younger and more than liberal.

As it sorted out, the Democrats were cautious, overconfident and misinformed about the mood of the country. They lost in Wisconsin, Pennsylvania, Missouri and North Carolina, winding up yet in the minority.

That left them powerless to terminate McConnell from eliminating the filibuster for Supreme Court nominees in 2017, paving the way to confirmation of Trump'southward commencement choice and probably his second.

And that is the predicament in which they find themselves today.

castorthereld73.blogspot.com

Source: https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now

Share this post