A more likely explanation is that Republicans simply can’t abide the idea of a Democratic appointee filling Justice Antonin Scalia’s old seat, thereby creating a working liberal majority on the court. Sen. Ron Johnson (R-Wis.) more or less admitted as much last week, during a little-noticed radio interview, when he said, “Generally, and this is the way it works out politically, if you’re replacing — if a conservative president’s replacing a conservative justice, there’s a little more accommodation to it.”
Republicans aren’t wrong about the stakes of the nomination fight. Putting Garland on the court would arguably be the most consequential judicial appointment since 1991, when President George H.W. Bush tapped Clarence Thomas to replace Justice Thurgood Marshall — or maybe since 1969, when President Richard Nixon picked Warren Burger to replace Chief Justice Earl Warren.
But what on earth gave Republicans the right to stop such a change from happening?
To be clear, there’s nothing wrong with the Senate contemplating a potential judge’s philosophy when exercising its power to provide “advice and consent” on nominations. There’s actually a long, if sporadic, history of the Senate rejecting nominees on these grounds. The first time it happened, as the Rutgers University historian David Greenberg has pointed out, was during the first presidency — when Federalists refused to confirm a George Washington nominee who had spoken out against the controversial Jay Treaty with Great Britain.
The Senate ultimately became more docile and, in more recent history, it has generally given presidents a lot of leeway on Supreme Court nominees. That’s why Scalia, whom everybody knew to be an archconservative when President Ronald Reagan first named him, sailed through a Democratic Senate by a vote of 98 to 0. But there have been exceptions and the most famous one was the very next appointment that Reagan tried: The nomination of Robert Bork.
Conservatives love to cite the rejection of Bork as proof that they have a right to block liberal nominees. But Senate Democrats didn’t refuse even to consider Bork, the way Republicans are now refusing even to consider Garland. On the contrary, they gave Bork a full hearing in front of a national television audience — throwing tough questions at him, giving him a chance to respond, and then hashing out in full public view the reasons why Bork might or might not be qualified to sit on the court.
In addition, Democrats didn’t argue that Bork was unfit for the court simply because he was conservative, or because his presence on the bench would shift its ideological balance to the right. Democrats argued that Bork was unfit for a more specific reason: because his apparent willingness to reject or overturn precedents on privacy and civil rights law, among others, put him outside of what the Democrats considered mainstream jurisprudence. They had no such problem with Anthony Kennedy, the judge Reagan appointed in Bork’s place, even though Kennedy had a solidly conservative record and, notwithstanding his rulings on abortion rights and same-sex marriage, has been a reliably conservative vote on most issues.
Conservatives could try to argue that Obama’s nominee is another Bork, and similarly outside what now qualifies as mainstream legal thought. But the selection of Garland makes that argument spectacularly difficult to back up. He’s a meritocrat’s dream who commands almost universal respect in the legal profession — criteria that, for better or worse, surely weighed heavily with Obama. “He’s a judge’s judge,” David Strauss, a constitutional law expert at University of Chicago, told The Huffington Post. “It’s hard to think of anyone, from any party in any era, who was better qualified to be a Supreme Court justice.”
And when it comes to ideology, Garland has a record of moderate, deferential rulings — in other words, nothing like the ideologically extreme views that Bork had routinely espoused when he was writing about the law. Many liberals are actually disappointed, and a few are downright frustrated, that Obama didn’t pick a nominee with stronger, more explicitly progressive views.
Meanwhile, Sen. Orrin Hatch (R-Utah), former chairman of the Judiciary Committee and a key figure on nominations, once praised Garland as a “consensus nominee” for the Supreme Court and just last week suggested that Obama “could easily name Merrick Garland, who is a fine man.” In 2010, the last time Obama filled a seat, Carrie Severino from the conservative Judicial Crisis Network told The Washington Post that “of those the president could nominate, we could do a lot worse than Merrick Garland. He’s the best scenario we could hope for to bring the tension and the politics in the city down a notch for the summer.”
If Republicans agreed to hearings, they’d have to make peace with losing the court — or make the difficult case that a relatively moderate liberal, with a voting record similar to Stephen Breyer, is outside the mainstream and unfit to serve on the court. They’d rather avoid either option, in the hopes that a Republican becomes president in 2017 and can keep the seat in conservative hands. The question now is whether they get away with it.
Author: Jonathan Cohn