Washington, D.C. should host an Olympics for finger-pointing. There would be no shortage of accomplished practitioners. Start with President Barack Obama, who, in introducing Judge Merrick Garland as his choice to replace Justice Antonin Scalia on the big bench, asked the Senate “to give him a fair hearing and then an up-or-down vote.” He told senators: “If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair. It will mean everything is subject to the most partisan of politics — everything.”
You’d never guess Obama not only voted against Chief Justice John Roberts but also supported a filibuster — that is, he opposed an up-or-down vote — to thwart the confirmation of Samuel Alito in 2005. Hillary Clinton also opposed Roberts and supported an Alito filibuster. Both Roberts and Alito won confirmation with Democratic support — which tells you they were qualified but not immune to the sort of partisan opposition that Obama now finds distasteful.
On the other side of the aisle, Senate Majority Leader Mitch McConnell took to the floor to promise he’d oppose an election-year confirmation in deference to the “Biden rule.” (In 1992, then-Senate Judiciary Committee Chairman Joe Biden said he would oppose an election-year GOP nominee.)
Judicial nominations are political by design, Georgetown University law professor Randy Barnett told me. “Judges are picked by a politically elected president and confirmed by a politically elected Senate.”
Because this is an election year, Obama chose a qualified and non-extreme federal judge with probably a shorter life span than his other potential nominees. The conservative Barnett described Garland, a former classmate, as “probably the most reasonable nominee a Democratic president could make.” The New York Times places Garland to the left of all living justices, save Ruth Bader Ginsburg and Sonia Sotomayor, and also reports that a Garland confirmation “could tip the ideological balance to create the most liberal Supreme Court in 50 years.”
With the ideological bent of the court in the balance and a presidential election months away, there simply is too much at stake. “Nobody in Washington, D.C., no living soul, believes that the Democrats would not be doing the exact same thing the Republicans are doing for the same reason” if the tables were turned, quoth Barnett.
Having also opposed Roberts and supported an Alito filibuster, Sen. Chuck Schumer, D-N.Y., knows he isn’t in a strong position to scold the GOP leadership. So the craven Schumer has come up with a line about how the Senate owes Garland and the American people hearings. Hearings for someone the Senate is bound to reject? Why not try waterboarding? I cannot think of a more textbook example of political circus.
There is a political risk to the GOP opposition. If a Democrat wins the White House in November, then she probably will nominate someone who is further to the left than Garland — not to mention younger. But if Republican senators want to hand the Supreme Court to the Democrats, then why would Republican voters support them?
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