The GOP’s Case for a Centrist Supreme Court Appointment

Back in March of this year, following President Obama’s nomination of Merrick Garland to the U.S. Supreme Court, Senate Majority Leader Mitch McConnell advised, “I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president. The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide.”

Senate Judiciary Committee Chairman Charles Grassley, Speaker of the House Paul Ryan, and a host of other high-ranking Republican Party officials swiftly and publicly echoed Senator McConnell’s sentiments, going to great lengths to attempt to turn the presidential election into a referendum on the open Supreme Court vacancy.

And with Hillary Clinton’s lead in the popular vote now surpassing two and a half million votes, it is clear that “the American people” have chosen Judge Garland, or some other Hillary Clinton-nominated justice, as their preferred selection.

Of course, it is likely that Senator McConnell and company would argue that Donald Trump’s electoral victory evidences that the will of the American people favors the appointment of a conservative-leaning justice, perhaps one of the twenty one judges included on a list that Mr. Trump published during his campaign and from which he pledged to choose, should he win the presidency. But such a position would reflect a perversion of their own stated logic, and ignores the full election results.

One of the tenets underlying modern American democracy is the principle of “one person, one vote”, which, since the early 1960s, has been reinforced by the Supreme Court itself. While it appears that we are stuck, at least for the time being, with the electoral college system — which provides residents of lesser populated states with an outsize influence over each presidential election (consider, for example, that in our most recent election cycle, a Wyomingite’s vote counted towards the electoral college more than three-and-a-half times as much as a Californian’s) — our elected officials do all of us a disservice when they ignore completely the actual voices of the general public. This precept becomes amplified in a situation like the one in which we now find ourselves, where partisans politicized this particular Supreme Court vacancy to such an extent that the vacancy was a contributing factor, if not the primary consideration, for tens of millions of voters in deciding for whom to vote earlier this month.

We should not be so naïve as to think that Mr. Trump and the Senate’s GOP majority, after all of their grandstanding following Justice Scalia’s death, would now take the extraordinary step of moving forward with Judge Garland’s nomination. But it would not be a ridiculous proposition to suggest that Mr. Trump, in concert with GOP leaders, eschew the list of conservative-leaning judges he previously published, and instead nominate a true centrist to fill the open Supreme Court vacancy (notwithstanding that Judge Garland is, by many measures, widely considered to be a centrist). Not only would such course of action reflect a strong showing of leadership and represent — both symbolically and substantively — the extension of an olive branch in furtherance of healing our political divide, but it could serve to reverse more than seven decades of politicians’ playing partisan politics with respect to Supreme Court appointments, a dangerous game which has provided overweighed authority to champions of extreme viewpoints, both on the right and on the left, long overstaying their welcome.

Following President Obama’s nomination of Judge Garland, Senator Grassley, cautioned, “A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics.” Perhaps now would be as good a time as any for GOP congressmen, together with Mr. Trump, to stop playing politics. Perhaps they should listen, even if just for a moment, to the clear voice of the American people.