The Wall Street Journal Editorial Board Moves The Goal Posts Over Obama's Supreme Court Nomination

The Wall Street Journal's editorial board suggested Senate Republicans could agree to vote on Merrick Garland's Supreme Court nomination during President Obama's lame-duck session only if Hillary Clinton wins the presidential election, to prevent “potentially more radical nominees.” Yet the board previously argued that any Obama nominee should be blocked to let the next president fill the vacancy -- a “double standard” some Republican senators have said they “wouldn't support.”

Obama Nominates Merrick Garland To Supreme Court

Obama Nominates Judge Merrick Garland To The Supreme Court. President Obama announced on March 16 his nomination of Judge Merrick Garland, the chief justice of the U.S. Court of Appeals of the District of Columbia, to the Supreme Court. According to The New York Times' report, Obama said Garland is “widely recognized not only as one of America's sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence”:

President Obama on Wednesday nominated Merrick B. Garland to be the nation's 113th Supreme Court justice, choosing a centrist appellate judge who could reshape the court for a generation and become the face of a bitter election-year confirmation struggle.

In selecting Judge Garland, 63, a well-known figure in Washington legal circles who has drawn praise from members of both parties, Mr. Obama dared Republican senators to ignore public pressure and make good on their promise to block consideration of any nominee until after the next president is chosen.


“I've selected a nominee who is widely recognized not only as one of America's sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence,” Mr. Obama said in a formal Rose Garden ceremony announcing his selection, where the president was flanked by Judge Garland and Vice President Joseph R. Biden Jr. “Presidents do not stop working in the final year of their term; neither should a senator.”


“To suggest that someone as qualified and respected as Merrick Garland doesn't even deserve a hearing, let alone an up-or-down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise -- that would be unprecedented,” the president said. [The New York Times3/16/16]

Wall Street Journal Editorial Board Says Senate Could Vote On Garland If Clinton Is Elected President

Wall Street Journal: Republican Senators Could Vote On Garland “In A Lame-Duck Session” If Clinton Is Elected President. The Wall Street Journal editorial board wrote on March 16 that Senate Republicans should refuse to hold hearings on Garland but those up for reelection could agree to vote on Garland “in a lame-duck session--if Mrs. Clinton wins the election,” since Clinton could choose “potentially more radical nominees”:

Merrick Garland's nomination is nonetheless intended to make the Senate's opposition seem unreasonable and make the battle about the Senate instead of the judge. His age is also meant to present a political riddle for Republicans who increasingly fear that their presidential nominee may lose. Is it better to have an older judge whose tenure might be shorter than that of other, potentially more radical nominees who Hillary Clinton might nominate?

Even a 63-year-old can stay on the bench for a generation these days, but no matter. Senate Republicans have staked out the principle that voters should have a say in the next Supreme Court nomination via their presidential choice. The Senate should spare Judge Garland from personal attack by refusing to hold hearings.

But if GOP Senators up for re-election want to be more conciliatory, they could say they regard Judge Garland as a suitable choice for a Democratic President and would be happy to vote for him in a lame-duck session--if Mrs. Clinton wins the election. That would be standing on principle and calling Mr. Obama's bluff. [The Wall Street Journal3/16/16]

The Journal's Editorial Board Previously Argued Any Obama Nominee Should Be Blocked To Allow The Next President To Fill The Supreme Court Vacancy 

Wall Street Journal: The Senate Should Refuse To Consider Any Obama Supreme Court Nominee This Year. The Wall Street Journal editorial board on February 15 wrote that Senate Republicans “are right to say that the Senate should refuse to consider any nominee this year,” claiming “progressives have made the Court so political that it's understandable that Republicans want to let the next President fill Justice Scalia's vacancy” :

The reality is that no one President Obama is likely to nominate for the Court this year has a chance to be confirmed in a GOP Senate. Republicans could vote for José Cabranes of the Second Circuit Court of Appeals, but he's 75 years old and too independent-minded for Democrats. Conservatives would revolt if Republican Senators voted to confirm any other Obama appointee.

And well they should. The stakes are simply too great with the High Court now split 4-4 on so many legal issues. The most important aren't even the social issues like abortion and gay marriage that preoccupy the media. Roe v. Wade isn't going to be overturned by replacing Justice Scalia, so the disputes would be over laws that regulate abortion in late term or to protect the health of the mother. Same-sex marriage won't be overturned either. 


The larger point is that progressives have made the Court so political that it's understandable that Republicans want to let the next President fill Justice Scalia's vacancy. A GOP Senator who voted to confirm an Obama nominee would demoralize his own supporters. Meanwhile, the outrage among Democrats over being denied a vote is entirely synthetic as they use the issue to mobilize their own partisans. (See Chuck Schumer nearby.)

Majority Leader Mitch McConnell and Judiciary Chairman Chuck Grassley are right to say that the Senate should refuse to consider any nominee this year. An election-year hearing and vote would only politicize the Court more and be unfair to the nominee.

So ignore any complaints you read about “unprecedented” GOP “obstruction.” As Justice Scalia warned (our Sunday editorial on his legacy can be found on, legal progressives made the Court a partisan cause by making value judgments that are best left for voters to decide. One result is that Democrats will have to fight and win an election in 2016 to replace the greatest contemporary Justice. [The Wall Street Journal2/15/16]

Wall Street Journal: Supreme Court Vacancy “Should Be Filled By The Next President.” The Wall Street Journal editorial board on February 16 wrote that Justice Scalia's “vacancy should be filled by the next President,” because “A Senate debate in an election year would be unfair to the nominee, who would face very low odds of confirmation”:

Justice Scalia correctly predicted that when judges behave as politicians, the people will treat them that way. And so we can see his prophesy play out in the already emerging fight to replace him. President Obama says he will nominate a replacement in this his final year, as he can under the Constitution.

But the Senate has no obligation to confirm or even vote on his nominee--especially from a President who has so willfully abused his executive power to rewrite statutes and pack the D.C. Circuit Court of Appeals. A Senate debate in an election year would be unfair to the nominee, who would face very low odds of confirmation. The political brawl would also damage the Senate and the Court itself by suggesting that the judiciary is no different from the elected branches as a venue for partisanship. 

By contrast, Justice Scalia was known for his personal goodwill and friendship even with those he disagreed. In this respect he lived his philosophy that self-government requires its partisans to be able to debate and then tolerate opposing views even if those views prevail in politics. 

His vacancy should be filled by the next President. The public would know the seat is part of the election stakes, and the Senate would honor Justice Scalia's legacy by shielding the Court from the worst of America's rancorous political divisions. [The Wall Street Journal2/16/16]

Yet Some Republican Senators Say Agreeing To Vote On Garland In Lame-Duck Session Only If Clinton Wins The Election - After Previously Insisting The Next President Should Get The Nominee -- “Would Be A Double Standard, They Wouldn't Support”

Some Republican Senators Say Agreeing To Vote On Garland In Lame-Duck Session Only If Clinton Wins Elections Would Be Hypocritical. Republican Senators told Talking Points Memo that agreeing to vote on Garland only if Hillary Clinton wins the presidential election, after previously asserting “the next president gets to pick the nominee ...  would be a double standard, they wouldn't support.” Sen. Lindsey Graham (R-SC) stated “We cannot say 'let the people speak,' and then say 'no, you can't'”:

But other fellow Republicans on the Senate Judiciary Committee say that is a double standard, they wouldn't support. 

“We can't have it both ways,” Sen. Lindsey Graham, (R-S.C.) said. “We cannot say 'let the people speak,' and then say 'no, you can't.' If you are going to let the people speak, let 'em speak and honor their choice.” 

Sen. David Perdue (R-GA), who also sits on the Judiciary Committee, agrees that Republicans could not change their minds in the lame duck session and move forward with Garland. 

“I think it is the next president, and I have said that all along. It's about the principle not the individual,” Perdue told reporters in a scrum on Wednesday. 

When asked if his mind would change if Clinton was elected, Perdue didn't budge. 

“No, if you are gonna do this, it's about the principle,” Perdue said. 

Sen. Roy Blunt, (R-MO), who is on the leadership team, agreed that Republicans could not reverse course now. Blunt also added that he, like many in the GOP, will not even meet with Garland. 

“I can barely schedule a call with my son's math teacher yesterday so probably no,” Blunt said on the meeting. [Talking Points Memo, 3/16/16]