On March 16, President Barack Obama created a fire storm when he nominated D.C. Circuit Chief Judge Merrick B. Garland to fill the U.S Supreme Court seat left vacant by the unexpected death of Justice Antonin Scalia. Judge Garland now finds himself in the middle of a bitter political battle over the vacancy. Judge Garland, who has served on the circuit court since April 1997 and as chief judge of the court since February 2013, emerged from a pool of several federal judges as the President’s top choice to take Justice Scalia’s seat. Prior to selecting Judge Garland, the President had made several public statements outlining the type of nominee he would put forward to fill the vacancy on the Supreme Court. President Obama had said he would ultimately pick an “eminently qualified” candidate and without a doubt he did so. I don’t believe any reasonable person would say that the nominee is not qualified to serve on the Supreme Court.
A 1977 Harvard Law School graduate, first nominated to the bench by President Bill Clinton, Judge Garland has extensive judicial experience. He is widely viewed as a political and judicial moderate – a factor that likely played to his favor, given the increasingly bitter fight between lawmakers over filling the high court vacancy. The nominee began his career clerking for Judge Henry J. Friendly on the Second Circuit and Justice William J. Brennan on the Supreme Court before joining the U.S. Department of Justice (DOJ).
Judge Garland spent several stints at the DOJ and as an assistant U.S. attorney, culminating in a role as principal associate deputy attorney general, supervising two prominent domestic terrorism cases – the Oklahoma City bombing and Unabomber prosecutions – among other very important work. In between his public service roles, the nominee spent two stints in private practice at Arnold & Porter LLP, and he also taught law at Harvard. It is not the first time the judge’s name has been raised in connection with a Supreme Court vacancy. He was on the short list to fill the vacancy left by the retirement of Justice John Paul Stevens, a slot that ultimately went to Justice Elena Kagan in 2010.
Judge Garland already has experience negotiating a politically fraught nomination process, having first been nominated for the D.C. Circuit in December 1995. His nomination languished for more than a year as lawmakers fought – not over his credentials, but over whether the relevant vacancy necessarily needed filling at all. He was ultimately confirmed in March 1997, after re-nomination, in a 76-23 vote. The battle over his nomination this time around is likely to be much more bitter, with the nominee landing squarely in the middle of a contentious election-year battle.
Senate Majority Leader Mitch McConnell, R-Ky., has vowed to block any nominee from moving forward until the next president is sworn in in 2017, regardless of the person’s qualifications. Sen. McConnell has argued that “the American people” should have a say in who is named to the high court through the presidential election in November. Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, has also pledged, alongside all other Republican members of the committee, to not hold a nomination hearing for any nominee. Of course that’s a necessary step for any federal judicial candidate to be confirmed by the Senate.
Senate Democrats and the two independent senators who caucus with them, however – Sens. Bernie Sanders, I-Vt., and Angus King, I-Maine – have argued that Senate Republicans should “do [their] job” and allow any high court nominee to at least receive a confirmation vote, even if that candidate is ultimately rejected, saying holding up a nominee is a dereliction of their constitutional duty to “advise and consent” on nominees.
Personally, I believe that the Republicans in the Senate should give Judge Garland a hearing and then a vote. Playing political games with nominations to the highest court – while perhaps not new – is very much wrong.
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