Shirking Justice: The Senate's Irresponsible Approach to the Merrick Garland Nomination

by Andrew Wilson

Sixty-one days have passed since the death of Justice Antonin Scalia. His death brought about a number of things: the ideological median of the remaining Supreme Court Justices shifted left, George Mason University’s Koch-funded law school stumbled through a name change, Justice Thomas ended his 10-year silence from the bench, and the number of people actively using the word “mummeries” fell from four to three. From a policy perspective, however, I’m most concerned about his successor.

About a month after Scalia’s unexpected death, President Obama nominated a potential replacement: D.C. Circuit Court of Appeals Chief Justice Merrick Garland. Garland is in many ways an exceptional—even ideal—candidate, and one I expect would be uncontentious outside of an election year. For one, he has more federal judicial experience than any Supreme Court nominee in history. He has also clerked for highly respected liberal (William Brennan) and conservative (Henry Friendly) judges, advised Attorney General Benjamin Civiletti, made partner at Arnold & Porter, and taught law courses at Harvard. In the 1990s, he supervised the investigations into the Unabomber and the Atlanta Olympics and Oklahoma City bombings. And now he leads America’s second highest court. He is, in short, uniquely qualified.

While leaders should carefully consider any potential nominee, an even-numbered court with stark ideological balance is a redistribution and redefinition of judicial power: Supreme Court decisions split 4–4 can’t set precedent and can’t alter the decisions of lower courts. Already, the Court was unable to resolve its differences over public sector union fees, granting an unexpected victory to union supporters (the lower court’s opinion stood). The Court has also met an impasse over the Affordable Care Act’s contraceptive mandate; if the Court hands down a 4–4 decision, they’ll fail to resolve a circuit split on the constitutionality of the issue (the lower courts’ conflicting opinions will both stand). This year’s docket also includes important cases on affirmative action and abortion.

There is no doubt that Merrick Garland differs ideologically from Antonin Scalia—few Justices in the Court’s history have held views as conservative as the late Justice. Attempts by political scientists to map Garland onto a political spectrum generally situate him near the Court’s liberal cluster, but he’s likely the most moderate of this group. Still, Garland’s confirmation to the Court would shift its crucial median vote substantially left; it would, by most estimates, result in the most liberal Court since the 1960s.

All said, though, the Senate does not owe Merrick Garland a confirmation. It owes him only a hearing. Since 1789, no nominee has waited more than 125 days for a hearing. The median wait for a full Senate vote in recent years was just 71 days. If Merrick Garland goes unconsidered for the duration of Obama’s remaining time in office, he’ll smash the record with a wait of 309 days.

While the Constitution does not expressly require the Senate to consider a nomination (it says only that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court”), failing to consider the President’s nomination unnecessarily politicizes an ideally apolitical institution. It’s an avoidance tactic, and a childish one at that.

Republican Senators opposed to a hearing argue that the American people should decide this issue by proxy through their choice of the next President—this is an election year, after all. But there is precedent for election-year appointments: Anthony Kennedy had no trouble seeking confirmation in 1988, nor did Benjamin Cardozo in 1932. Some argue that such a dereliction of duty is a waiver of rights, allowing the President to make an unconfirmed appointment. But even if President Obama were to make such a move, it would only further politicize the Court.

Arguably, the Framers defined Senate responsibility as providing “advice and consent” rather than a “discretionary veto” because they respected the Senate’s role in advising the President, not because they respected the Senate’s right to avoidance politics. They would do well to heed this distinction.

[For a look at the most important cases from Chief Judge Garland’s record, see]

Andrew Wilson is an Editor-in-Chief of PolicyMatters Journal and an MPP candidate at the Goldman School of Public Policy.