More than 200 days since President Obama’s nomination of Merrick Garland to the Supreme Court, the Republican controlled Senate has yet to hold hearings on his confirmation. Garland, a moderate leaning liberal, has not been questioned on the basis of his merits to the highest court in the land; rather, his appointment on the Supreme Court has been treated as a “political football” in the words of President Obama. Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Chairman Chuck Grassley (R-Iowa) have vehemently opposed any Obama nomination during an election year, and have repeatedly said that the Senate will not hold hearings for Garland’s nomination.
Garland, the Chief Judge of the powerful U.S. Court of Appeals for the D.C. Circuit, has the qualifications to be a Supreme Court Justice. Graduating magna cum laude from Harvard Law School, Garland landed a prestigious clerkship with Supreme Court Justice William Brennan. He led the federal investigation and prosecution of Timothy McVeigh after the Oklahoma City Bombing. Members of Congress from both sides of the aisle have claimed he would have bipartisan support for a Supreme Court nomination: Senator Orrin Hatch (R-Utah) called him a “consensus nominee” in 2010 if he were nominated to the seat left vacant by Justice John Paul Stevens, claiming there would be “no question” of his confirmation. So the question is: what has changed for Republicans in six years?
Republican Opposition
McConnell has made his opposition to working with the President on legislation and appointments a key feature of his leadership in the Senate. In March 2009, McConnell and 40 other Republicans sent a letter to Obama, warning of a far more scrutinizing process for the president’s nominees to the federal courts. The result has been that Obama’s nominees have faced the longest average wait for Senate confirmation since the Reagan Administration. Since April 30, the 114th Congress has only confirmed 198 civilian nominees, far lower than the 345 confirmations for President George W. Bush, or the 286 confirmations for President Bill Clinton in his final two years in office.
This opposition by Senate Republicans is so great that it has led to the slowest confirmation rate of federal judges since 1953. The six judges confirmed have been done so unanimously, frustrating Democratic leaders who see clear bipartisan support for Obama’s appointees. This GOP strategy of confirmation postponement has hinged on the premise that a Republican will take back the White House in January and fill these seats with Republican nominees. This plan has extended to the highest court in the land, with no likely end before the election.
The Campaign
Many Democrats expected the Republican obstruction of the president’s nominee to become a major campaign issue. Public sentiment vastly favored the Obama Administration and Democrats. In fact, 69 percent of Americans wanted the Senate to hold hearings and consider Garland’s nomination. However, the Obama Administration was unable to properly utilize this political asset, and the Clinton campaign has rarely mentioned the Supreme Court on the campaign trail. Rather, the Trump campaign has been the one to bring up the issue of potential Supreme Court nominations, releasing a list of potential nominees.
Garland, meanwhile, has been nowhere to be found. Neither side has a great benefit of pushing Garland’s nomination as a key issue, as American voters have different priorities for the election. Clinton especially has reason to neglect Garland’s nomination at this point, as she may have the ability to choose a new Supreme Court Justice in her first days in office if elected. Therefore Garland is left in a state of limbo, with no likelihood of being confirmed until the lame-duck session begins.
What’s Next
With no Senate hearings scheduled before the election, Garland’s nomination will only be widely reported on after new president is elected. While it is self-evident that a Trump victory on November 8 would yield the firm rejection of Garland by the Republican Senate—and political vindication for McConnell—the future of Garland’s nomination if Clinton wins remains uncertain. The potential for the Republican Senate to hold hearings during the lame-duck session on Garland’s nomination would most likely increase dramatically in response to the fear of a liberal appointee by Clinton.
A decision on Garland’s nomination would be among the first decisions President-elect Clinton might be forced to make, and a difficult one at that. Senate Minority Leader Harry Reid (D-Nev.) is “convinced” that Clinton would continue with Garland’s nomination to expedite the process. Some officials in the Obama Administration believe that it would be wise of Clinton to remain with Garland to ensure a stable start to her administration, and other Democratic officials believe Garland’s arduous nomination experience has only solidified his standing as the nominee. However, based on Clinton’s response to a question regarding her vision for the Supreme Court during the last presidential debate, she may be moving away from “the person of President Obama” as her choice for the Supreme Court. Whatever the case may be, on November 8, Garland will likely be watching the results of the presidential election very closely, his future on the bench of the Supreme Court in the balance.
Image Credit: Wikimedia Commons/The White House