Take Your Time, Senate. Judge Garland Isn’t Sweating It.
After holding our collective breaths for the past four weeks, following the unexpected and somewhat dramatic death of Justice Antonin Scalia, we can exhale at last. The president—yes, a president in his or her fourth year is still fully the president—has nominated Appellate Court Judge Merrick Garland as the junior justice on the Supreme Court. The games can begin.
Not every would-be justice comes as well prepared for the chicanery of the US Senate as Judge Garland. In 1995, President Bill Clinton nominated him to the DC Circuit Court to replace the seat vacated by fellow Chicagoan Abner Mikva. (Mikva, who is still going at 90, had left the seat late in 1994 to become White House Counsel.) Garland’s nomination should have been smooth sailing. He was valedictorian of his Harvard class, editor of Harvard Law Review, and as Deputy Assistant Attorney General in the first Clinton Administration, he had been supervising two very high profile domestic terrorism cases—the Oklahoma City Bombing and UNABOMB. He’s a highly-regarded centrist judge, and he was replacing someone who was to the left of him. But Garland had been working in the Clinton Administration and had been nominated by Clinton, too. That was a double strike against him in the heady days of the 104th Congress, which rolled in the red tide of the Republican control.
In December of 1995, the Senate did give Garland a hearing, which may be unlike this go-round (more to come on that). According to SCOTUSblog, he was asked about “judicial activism,” which seems to be a code for, “Will you make rulings with sweeping social change like Brown v. Board or Roe v. Wade or Oberfell v. Hodges, for that matter?” To which Garland gave a satisfactory answer that the judge’s job is to rule on the facts of the specific case before him or her, not to legislate from the bench. All seemed well enough for the nominee to call in an order for black robes, but the small-government fever of the 104th Congress took over: the Senate decided that the DC Court didn’t need 12 seats, and so they would not fill the vacancy. (They got their wish a little more than a decade later, when the 7th seat was removed from the court, which makes DC the only place where 7 is not a lucky number.) But this didn’t sink Garland; it only stalled his nomination. When Clinton won re-election in 1996, he nominated Garland again; this time, it worked. SCOTUSblog reminds us that Orrin Hatch, who was one of 22 Republicans who joined the Democrats in an affirmative vote, noted that Judge Garland was “not only a fine nominee, but as good as Republicans can expect from [the Clinton] administration.”
Which is funny because just today Hatch penned an opinion for Time, stating that the Senate shouldn’t hold hearings, because it can only make a political football of the court. (In one of the great lines, both scare tactic and bet-hedging, he writes that either “Hillary Clinton or the Republican Nominee” should pick the next justice, knowing full-well that Hillary is not the democratic nominee nor is it unclear who the likely Republican nominee is; ahem, Mr. Trump.) Hatch wrote the op-ed just before Obama announced Judge Garland’s nomination to the Supreme Court. But it’s doubtful that he’ll be printing a retraction.
Judge Garland isn’t new to this rodeo. He has lived and worked in DC since he was a baby lawyer. And he can’t have missed the cry from Republicans, minutes after Justice Scalia’s death was reported, that they wouldn’t hold hearings on any nominee, even if Oliver Wendell Holmes rose from ash to be nominated again. But polls show that a clear majority of Americans think Obama should make a nomination and the Senate should hold confirmation hearings. Anyone interested in re-election and in giving their party some good PR should think seriously about how long to hold out. Garland, for his part, doesn’t mind waiting.