On March 16, President Obama announced his nomination of Judge Merrick Garland to the United States Supreme Court. Garland has faced misleading and false attacks, as well as a concerted push for continued obstruction of any Supreme Court nominee chosen by Obama. However, some of the same conservative officials and pundits have previously lavished Garland with praise arguing that he would be a “consensus nominee” representing “the best scenario” for bipartisan support.
President Obama Selects Judge Merrick Garland To Fill Supreme Court Vacancy
President Obama Announces Judge Merrick Garland As His Nominee To The Supreme Court. President Obama named Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy on the Supreme Court. Garland has served on the D.C. Circuit since 1997. [Associated Press, 3/16/16]
Senate Republicans Have Announced Opposition To Considering Any Obama SCOTUS Nominee. Senate Republicans, led by Majority Leader Mitch McConnell (R-KY), have announced an unprecedentedly obstructionist strategy to blockade any nominee President Obama puts forth, promising not to afford any nominee a public hearing in the Senate Judiciary Committee. As reported by The New York Times:
Senator Mitch McConnell, Republican of Kentucky and the majority leader, has said he will not even meet with Mr. Obama's eventual nominee. Republicans on the Senate Judiciary Committee have signed a letter affirming that they will not hold hearings on such a nominee.
Democrats have launched a blistering attack on Mr. Grassley, who on Thursday drew an unexpected Democratic challenger in his campaign for a seventh term. Under pressure this week, Mr. Grassley said that he would be open to meeting with Judge Jane Kelly [, a federal appellate judge on President Obama's shortlist,] because she is an Iowa constituent, and that he would not rule out sitting down with another person Mr. Obama might nominate.
But Mr. Grassley has insisted that even though he warmly praised Judge Kelly in the past and urged fellow senators to support her confirmation to the federal bench, he would refuse to consider her or any other Supreme Court nominee on the principle that Mr. Obama does not have the right to advance one.
The president has said he has an obligation under the Constitution, which says he “shall” nominate Supreme Court justices, to fill the vacancy. Public opinion polls indicate that large majorities of Americans believe that the Senate should hold confirmation hearings. [The New York Times, 3/5/16]
Supreme Court Experts Agree That GOP Calls For Obama Not To Nominate A Replacement Ignore The President's Constitutional Responsibility. Legal scholars and reporters who have covered the Supreme Court have criticized conservatives' initial calls for Obama not to even announce a nominee to fill the vacancy. As Media Matters reported:
Several legal scholars and Supreme Court beat reporters contend the president has a duty to appoint a replacement for Scalia, adding that the U.S. Senate is abdicating its constitutional responsibility if it does not hold hearings to approve or reject such nominees.
“Functionally, what that will mean is, assuming we do wait until January or February next year without a justice, we are going to go an entire year without a full court,” [Lucas A. Powe, a University of Texas Law School professor and a one-time clerk for former Supreme Court Justice William O. Douglas,] said. “That means a lot of important cases are going to be put off until 2018.”
He is among several experts who said the Senate has a right to reject a nominee, but not ignore it and refuse to vote: “It's another example of how rotten our politics are.” [Media Matters, 2/16/16]
GOP Pledge To Refuse To Hold Hearings Is Contrary To More Than 100 Years Of Senate Nomination Process Norms. Explaining modern precedents surrounding Supreme Court nomination and confirmation norms, the White House noted on its website that “since 1875, every nominee has received a hearing or a vote” :
Every nominee who was not withdrawn has received a vote within 125 days of nomination.
Since 1975, the average time from nomination to confirmation is 67 days. In fact, since 1875, every nominee who was not withdrawn has received a hearing or a vote. The longest time before confirmation in the past three decades was 99 days, for Justice Thomas, and the last four Justices, spanning two Administrations, were confirmed in an average of 75 days.
The Senate has almost a full year to consider and confirm a nominee. [WhiteHouse.gov, accessed 3/16/16]
Conservative Leaders Have Previously Praised Garland As A “Fine Man,” With “A Very Good Reputation” Who Would Be Considered “A Consensus Nominee”
Sen. Orrin Hatch: Obama Could “Easily Name Merrick Garland, Who Is A Fine Man,” To The Supreme Court. On March 13, days before Garland's nomination, Newsmax reported that Sen. Orrin Hatch (R-UT) had noted in his speculation on the impending Supreme Court nomination that the president “could easily name Merrick Garland” to fill the court vacancy (emphasis added):
Prior to Hatch's address to a packed luncheon in Washington DC hosted by the Federalist Society, we asked him if he felt the White House would select a nominee who is black or Hispanic to cause election-year difficulty for Republicans who oppose any Obama nomination on the grounds that the next President should fill the court vacancy.
“He could be headed in that direction,” replied Hatch who has served as either chairman or ranking Republican on the Senate Judiciary Committee from 1993-2005, “This [nomination process] is all about the election.”
“The President told me several times he's going to name a moderate [to fill the court vacancy], but I don't believe him,” Hatch told us.
"[Obama] could easily name Merrick Garland, who is a fine man," he told us, referring to the more centrist chief judge of the U.S. Court of Appeals of the District of Columbia who was considered and passed over for the two previous high court vacancies.
But, Hatch quickly added, “He probably won't do that because this appointment is about the election. So I'm pretty sure he'll name someone the [liberal Democratic base] wants.” [Newsmax.com, 3/13/16]
Sen. Hatch In 2010: Garland Would Be “A Consensus Nominee.” In May 2010, Hatch publicly supported a potential Garland nomination to the Supreme Court, as reported by Reuters:
A Republican on the Senate Judiciary Committee said on Thursday he would help moderate jurist Merrick Garland win Senate confirmation if President Barack Obama nominated him to the U.S. Supreme Court.
Senator Orrin Hatch said he had known the federal appeals court judge, seen as a leading contender for the Supreme Court, for years and that he would be “a consensus nominee.”
Asked if Garland would win Senate confirmation with bipartisan support, Hatch told Reuters, “No question.”
“I have no doubts that Garland would get a lot of (Senate) votes. And I will do my best to help him get them,” added Hatch, a former Judiciary Committee chairman. [Reuters, 5/6/10]
Conservative Operative Curt Levey In 2012: Senate “Armageddon” Would Occur If Obama Nominated Anyone “To The Left Of Merrick Garland.” In a 2012 Wall Street Journal article highlighting the likelihood that Obama would have the opportunity to appoint another Supreme Court justice in his second term, conservative operative Curt Levey, then the president of the defunct Committee for Justice, speculated that, should the president have to replace “Scalia or Kennedy,” the Senate would unleash an “Armageddon” on any nominee “to the left of Merrick Garland” (emphasis added):
On Sunday, Curt Levey, president of the Committee for Justice, a Washington, D.C., conservative legal group, emailed followers a warning headlined “Obama Court Nightmares,” illustrated with a 1957 Time magazine cover featuring Chief Justice Earl Warren. Although himself a Republican appointed by Dwight Eisenhower, Chief Justice Warren's court handed down a raft of liberal decisions beginning with Brown v. Board of Education, which abolished school segregation. In his 2008 campaign, Mr. Obama cited Chief Justice Warren, who had been California governor and attorney general but never a judge, as exemplifying the experience he thought belonged on the Supreme Court.
Wednesday, Mr. Levey said conservatives are determined to prevent Mr. Obama from “giving us another Warren Court.”
Because Republicans lost the presidential election and a couple of Senate seats, Mr. Levey said Mr. Obama was entitled to “a lot of deference” should he wish to replace Justice Ginsburg or another liberal with a like-minded nominee.
“But if it's replacing [Justice Antonin] Scalia or [Justice Anthony] Kennedy, then we're really talking Armageddon” --a filibuster that could grind Washington to a halt--should the president nominate “anyone to the left of Merrick Garland,” Mr. Levey said. Judge Garland, who was considered for the earlier vacancies in Mr. Obama's term, is a former Justice Department official who prosecuted the Unabomber, Ted Kaczynski, and Oklahoma City bomber Timothy McVeigh before President Bill Clinton appointed him to the U.S. Court of Appeals for the District of Columbia Circuit. [The Wall Street Journal, 11/8/12]
National Review's Ed Whelan In 2010: Garland Has “A Very Good Reputation Among His Conservative Colleagues.” On the April 16, 2010, episode of EWTN's The World Over, National Review legal blogger Ed Whalen, president of the conservative Ethics & Public Policy Center, praised Garland's “reputation” among conservatives, saying:
RAYMOND ARROYO: Let's talk about Merrick Garland. He serves here in Washington, D.C., on the Circuit Court of Appeals here. He's the moderate of the bunch, or so we here. Tell us about him.
ED WHELAN: Well, Merrick Garland has been on the D.C. Circuit Court since the late 90s. He also was appointed by President Clinton. He has earned, I think it's fair to say, a very good reputation among his conservative colleagues and there's nothing glaring in his record. I have no illusions that if he's appointed he would help move the court in the right direction, you know, at most move it more slowly in the wrong direction, but I think as the candidates who are being talked about, he's probably the best of the bunch, though I emphasize “the candidates being talked about,” that's quite a limited --
ARROYO: Yeah, that's a rotten bunch, is what you're saying.
WHELAN: Yeah. [EWTN, The World Over, 4/16/10]
Whelan To Wash. Post In 2010: Garland Has “Earned The Respect Of A Range Of Folks, Including Conservatives.” Reporting on speculation about a nominee to replace then-retiring Justice John Paul Stevens in April 2010, The Washington Post quoted Whelan describing Garland's merits (emphasis added):
Among his friends are some of the capital's most powerful Democratic operatives, as well as conservatives such as Chief Justice John G. Roberts Jr. and D.C. Circuit colleagues Laurence H. Silberman and David Sentelle. Some of the conservative judges, Republican sources say, have quietly sent their GOP friends a message: Don't attack Garland.
If conservatives were choosing a nominee, Garland “would be nowhere on the list,” said Ed Whelan, president of the conservative Ethics and Public Policy Center, but Garland compares favorably with other candidates President Obama might consider.
“He's earned the respect of a range of folks, including conservatives, and I think he is the most likely to exercise judicial restraint,” Whelan said. [The Washington Post, 4/23/10]
Judicial Crisis Network's Carrie Severino In 2010: A Garland Nomination Would Be “The Best Scenario We Could Hope For” In Terms Of Bipartisanship. In the same April 2010 Washington Post article, chief counsel to the discredited right-wing Judicial Crisis Network Carrie Severino said that a Garland nomination to the court would be the “best scenario we could hope for” to bring about bipartisan support (emphasis added):
Carrie Severino of the conservative Judicial Crisis Network said Garland may be far more liberal than his rulings indicate because he has not yet publicly staked out his position on issues such as abortion.
“But of those the president could nominate, we could do a lot worse than Merrick Garland,” Severino said. “He's the best scenario we could hope for to bring the tension and the politics in the city down a notch for the summer.” [The Washington Post, 4/23/10]
Whelan And Levey In 2010: “Love Fest” Would Follow A Garland Nomination. In an April 2010 article in New York magazine discussing potential replacements for Stevens, Ed Whelan and Curt Levey said of a potential Garland nomination (emphasis added):
A consummate Beltway insider, Garland clerked for William Brennan, worked as a litigation partner at Arnold & Porter, and served in the Carter, Bush 41, and Clinton administrations; in the last of those gigs, he oversaw the Oklahoma City bombing case. Since he ascended to the bench, Garland has won many fans, Republicans among them, with his careful opinions and lack of overt ideological bias. Garland counts Roberts, with whom he clerked as a young man, as a friend. Orrin Hatch has sung his praises. Ed Whelan, a former Bush 43 Justice Department official, calls him “the best nominee that Republicans could hope for.” Right-wing judicial activist Curt Levey adds, “You'll have, if not a love fest, something close to it if [the choice is] a Garland.” [New York, 4/23/10]