Supreme Court Kerfluffle is Politics as Usual

The President announced his nomination today of DC Circuit Court of Appeals judge Merrick Garland to replace Justice Antonin Scalia, who passed away last month.  Garland, a Clinton appointee, has all the pedigree one would expect from the modern Supreme Court Justice nominee.

No one is likely to argue that he is not qualified for the job.  As for his stances on issues, those are unclear, but we are sure to hear more about them in the coming weeks. What is clear and what is also unfortunate is that Judge Garland is going to end up joining Abe Fortas, Robert Bork and many others on the list of qualified almost Supreme Court justices who never got a chance to serve because of politics.

It took almost no time for the posturing to continue in the on-going fight between the Republican Senate and the President over whether to even consider Garland – or anybody else – to replace Scalia less than a year before a new President will take the oath of office.  Republicans in Congress and nationally have made the political calculation that having a pending Supreme Court vacancy – especially one to replace a conservative icon – at play in the presidential race will help Donald Trump’s efforts to defeat Hillary Clinton in November.  Press releases flew like confetti this morning, coming from all angles here in Virginia.

Everybody’s favorite most-activist-Attorney-General-in-Virginia-History Mark Herring was off to the races this morning, saying “[t]he U.S. Supreme Court is one of our nation’s most revered and important institutions. It should be beyond the kind of political games we have seen in recent weeks surrounding this nomination … To refuse to even consider the nomination of a jurist with such impressive and extensive credentials, experience, and past bipartisan support is to sacrifice the Constitution in an unprecedented pursuit of political obstruction. The wheels of government and the proper functioning of the highest court in the land cannot simply grind to a halt for an entire year because the Senate is controlled by a different political party than the president.”

Talk about naive.  Did he miss 2013?

Mark Warner was less overtly political, simply demanding an up or down vote, arguing “[t]his remarkably qualified appellate judge deserves a hearing before the Senate Judiciary Committee, thoughtful consideration by the full Senate, and an up-or-down vote. I strongly urge my colleagues to respect the process and hope that they will allow the Senate to perform its constitutional duty to consider Judge Garland’s nomination.”

On the Republican side, Mitch McConnell made clear that the Republicans don’t intend to take up Judge Garland’s nomination at all.  On the floor of the Senate, McConnell teed up the presidential election issue argument, saying “[t]he American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.”  In response to those arguing Republicans were politicizing the nomination, he threw that back in the President’s lap stating “[i]t 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.”

Virginia elected officials were quick to follow McConnell’s lead.  Congressman Rob Wittman issued a statement in which he argued that “[u]nder our Constitution, the President has the power to choose a nominee, but the Senate has the prerogative not to confirm that nominee … I fully support Leader McConnell and [Judiciary Committee] Chairman Grassley’s decision not to move forward with the confirmation process.”

Randy Forbes said “Allowing this President to cement his agenda through the Supreme Court is a mistake America cannot afford. I introduced legislation urging the Senate to only consider a nominee with a proven record of defending the Constitution. It is crucial Americans have confidence that our Supreme Court Justices are bound — not by the agenda of an Administration — but by the Supreme Law of the Land.”

Dave Brat’s press staff apparently took the day off today (they must ride the METRO to work), and didn’t issue anything. I’m shocked.

RPV Chairman John Whitbeck landed a solid blow against Virginia’s Senate Democrats, throwing Vice President Biden’s “rule” back in their face. Granted, the “Biden Rule” is more Biden and less rule, but it does demonstrate how political these decisions have been in the recent past.

If you haven’t already done so, listen to Biden’s floor speech that Whitbeck linked to above.  He could have easily been speaking about now.

When it comes to the decision over whether Judge Garland’s nomination goes any further, there is no higher calling to appeal to.  Both parties can appeal to the Constitution.  Both parties can appeal to precedent – there is precedent on both sides for confirming in the final year of a presidency, as I noted when Justice Scalia passed.  In the end, this decision comes down to one thing – politics.

The Constitution is clear.  The President has the Article II power to nominate members of the Supreme Court of the United States – by and with the consent of the Senate.  That’s as far as the Constitution goes – President nominates, Senate approves.  There is no requirement for hearings and not every Justice confirmed has had to testify in hearings, those being a more modern contrivance designed to provide free media for Senators more than to plumb the depths of the souls of our potential jurists. Harlan Fiske Stone was the first nominee to receive a Senate committee hearing in 1925, and those hearings only became a regular occurrence in 1955 with the nomination of the second John Marshall Harlan.  Given the Court had just handed down Brown v. Board of Education, it’s not hard to discern that the modern committee grilling of nominees was more politically motivated than designed to ensure qualified juridical material makes its way to the high court.

There is no requirement that nominees receive hearings.  There is also no requirement that nominees receive up or down votes.  Seats have remained vacant for significant periods of time in the past – as long as two years during the Tyler and Polk administrations.  Those who (bitterly) cling to history or precedent in making their arguments about the Garland nomination should recognize that history and precedent aren’t particularly strong arguments here.

Vice President Biden said in 1992 “[g]iven the … overall level of bitterness that sadly infects our political system and this presidential campaign already, it is my view the prospects for anything but conflagration with respect to a Supreme court nomination this year are remote as best.”

Well said, Mr. Vice President. Welcome to 2016, where we’re about to witness an epic cat-versus-toddler-style slap-fight for the presidency. Conflagration is probably one of the tamer (and less profane) words one might use to describe this presidential campaign.

At the end of the day, the decision on whether to entertain President Obama’s Supreme Court nominee is a political one.  Both sides have their arguments, but he who controls the Senate controls the nomination process.

That happens to be Mitch McConnell.

He is rumored to be a Republican.