As President Barack Obama nominated Merrick Garland, the chief judge of the country’s second-most powerful court, to the Supreme Court on Wednesday, Republican leaders immediately accused the White House of playing politics. In fact, it is Republicans who are putting politics above their essential responsibilities. Garland should get confirmation hearings, and after those a straight up-or-down vote. Any political damage Republicans endure for refusing will be self-inflicted and well-deserved.
The case against Garland – well, there is not much of a case against him. He is unusually well-respected across the ideological spectrum. He worked his way up in the Justice Department as a prosecutor, gaining respect for supervising terrorism cases, before joining the federal bench. He was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit 76 to 23 in 1997, and several sitting senators should remember voting for him. One, Sen. Orrin Hatch, R-Utah, was once quoted as calling him a “consensus nominee.” During his time on the D.C. Circuit, Garland has gained a reputation for thoughtfulness. He is an ideal nominee in these divided times.
All this is beside the point, GOP leaders argue. Senate Majority Leader Mitch McConnell, R-Ky., said Wednesday that Republicans’ refusal to consider Garland is “about a principle, not a person,” explaining that “the American people should have a say in the court’s direction.”
But they did have a say – when they elected Obama to a second four-year term. McConnell and his Senate colleagues serve six years at a time, which, incidentally, means they are arguably more lacking in democratic legitimacy in the final years of their terms than any other elected federal officeholders. One could draw all sorts of arbitrary lines circumscribing what presidents or senators should be able to do in the run-up to an election. Each one would increase gridlock and further inhibit the government’s proper functioning. Elections are supposed to provide regular and orderly guidance to government, not shut it down for months at a time. The only workable principle is that politicians be allowed – indeed, expected – to do their jobs for as long as the country has hired them.
McConnell falls back on the argument that, as a Democratic senator from Delaware, Joe Biden argued in 1992 that the president should not tap Supreme Court nominees “once the political season is underway.” Indeed, it is almost certainly true that, if roles were reversed, Democrats would use the same strategy McConnell is pursuing. But Biden being wrong in the past does not change the fact that McConnell is wrong now. The debate about Garland’s nomination should not be about the unremarkable fact of political hypocrisy. It should be about Garland and his qualifications.
It may be true that Obama chose Garland with politics in mind, forcing Republicans to reject a supremely well-qualified judge. Yet Obama could have chosen to nominate a more ideological figure or a minority candidate with an eye to turning out voters. Instead, the president selected someone whose primary political advantage is that he is eminently reasonable, which is what a Democratic president would do if he were reaching out in good faith to a GOP Senate. Republicans should respond with the same good sense