July 25, 2016 | Commentary on Legal Issues, Federal Judicial Branch

Why Republicans Should Not Fold On Garland's Nomination

Some pundits, such as Leon Wolf at RedState, are urging Senate Republicans to quickly confirm President Obama’s nominee, Merrick Garland, to fill the Supreme Court vacancy left by the sudden passing of Justice Antonin Scalia in February. Wolf argues that there’s “absolutely no reason to drag this out any longer” because “Republicans must know that there is absolutely no chance that we will win the White House in 2016 now.”

With all due respect to Mr. Wolf, we have a different view of why Judge Garland’s nomination should not be acted upon. The goal of the Senate Leadership’s decision to provide their “Advice” to the president by sitting on the nomination was not to deny Mr. Obama another appointment to the Supreme Court. Rather, the goal was to give the American people the ability to weigh in on who should fill this crucial seat when they cast their votes this November and decide who will be the next president.

This decision upholds a longstanding Senate tradition.  As Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, has pointed out, for more than 80 years it has been the upper chamber’s standard practice not to confirm Supreme Court nominees for vacancies that arise during a presidential election year.

This goal should be met—and this tradition be kept—no matter who the parties nominate as their presidential candidates.  American voters should decide what kind of justice should sit on the Supreme Court.

There is no question that playing Russian roulette with a Supreme Court vacancy is a political gamble for conservatives. Although we can’t be sure what caliber judicial nomination Donald Trump would make as president, he suggested Judges Diane Sykes or Bill Pryor at a debate in February, both of whom would be fine choices.

On the other hand, as Wolf reminds us, the next president might nominate an extreme left-wing radical who is much younger than Garland.  Although this is not to say that Garland, who was nominated to the D.C. Circuit of Appeals by President Bill Clinton and confirmed in 1997, is the “moderate” judge many in the media have portrayed him to be.

In fact, the exact opposite is true.  The decisions that Judge Garland has written or participated in during his nearly 20 years on the bench reflect that he is neither a centrist nor a moderate.  His judicial history leaves little doubt that he would be the solid fifth liberal vote that would roll back parts of the Bill of Rights like the First and Second Amendment; eviscerate any remaining limits on the power of the federal government; and  “create” nonexistent rights in the Constitution to meet the desires of the progressive world.

But the Senate Republicans’ strategy has never been about the merits of Judge Garland, and it should stay that way.  Without the Senate’s support, an outgoing president is not entitled to make a decision about a critical position with lifetime tenure in the third branch of government that will affect the country for decades after that president’s term has long ended.

As Majority Whip John Cornyn, R-Texas, said, “I, for one, believe we ought to be consistent, and that consistent principle is the American people deserve to be heard and their voices heeded on who makes that selection to something as important as filling this vacancy on the Supreme Court.”

Sen. Lindsey Graham, R-S.C., put it more bluntly: “We can’t have it both ways…We cannot say ‘let the people speak,’ and then say ‘no, you can’t.’”

If Senate Republicans choose to change their strategy at this point, they would be turning their backs on the groundswell of grassroots support for what they are doing, as well as the principle they have fought for—that the American people deserve a voice in this process.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Elizabeth Slattery Legal Fellow and Appellate Advocacy Program Manager
Edwin Meese III Center for Legal and Judicial Studies

Originally published in Conservative Review