Forum

Nominee Garland can’t be left hanging by GOP

Editorials featured in the Forum section are solely the opinions of their individual authors.

In the endless cycle that is presidential election news, we hear a lot about businessman Donald Trump and his promises for better deals. Deals with Mexico, China, you name it, Trump will make a deal with it. A great deal. You’ll see.

In the arena of current presidential news however, the congressional leaders of the GOP are faced with another deal that has a lasting effect on our nation, more than a four-year term. Obama has appointed a nominee to succeed Justice Antonin Scalia on the Supreme Court: Merrick Brian Garland.

Obama announced his appointment last week in a clear statement to Congress: “I’ve done my job, now you do yours.”

As per his constitutional duty, the president has appointed a justice to fill the vacancy, and the Senate will hold hearings and vote to confirm the nominee, right? Wrong. Cue the obfuscation!

In their attempt to continually be the most unproductive Congress ever, GOP Senate leaders previously stated that they would consider no nominees until after the election. “Give the American people a voice!” they cried. “Let the next President choose the justice!” They invoke such “rules” as the Thurmond rule and Biden rule, which are both myths conjured by opponents of previous nominees.
Many, like Senator Marco Rubio (R–FL) and Senator Ted Cruz (R–TX), say that precedent mandates not nominating and confirming justices in an election year. If you say it loud enough, it sounds true! Except for the fact that these claims are completely false. Pants on fire.

But let’s really dig into all the hypocrisies of their argument, shall we?

First, let us address all this populist rhetoric. I get that GOP establishment incumbents are trying to sound like they want the people to choose. Let the people decide like our founding fathers intended. It’s a reasonable political ploy, especially when trying to save their seats with a fascist bag of Cheetos as the potential nominee.

Except for that the people did choose; we chose Obama, twice. Now if some of the GOP wants to claim that the 2014 Midterm elections is a sample for the people, then they should tell that to the 66 percent of our country that did not vote in them.

It’s simple: the voters wanted a Democrat (as they have in the last five of six general elections) in the Whit House, so he will be appointing the judges until he’s out. No more discussion.
Now, don’t get me wrong, Democrats are also at fault for holding up Supreme Court justices. In 2005, during Samuel Alito’s hearings to be on the Court, then Senator Obama (D–IL) and Senator Clinton (D–NY) voted with 22 other prominent Democrats to filibuster the entire nomination process. Only four Democrats even voted for Alito to confirm him. It has become increasingly difficult to keep the Supreme Court above politics, as it was intended.

Still, in Alito’s case, the Democrats saw him as a more extreme conservative ideologically, and would perhaps have been more willing to support a consensus nominee, a moderate that most of the Senate could get behind.

Keep in mind many Republican leaders have called Merrick Garland a “consensus nominee” (Orrin Hatch (R-UT), senior member of the Senate Judiciary Committee) in his previous hearings to be confirmed to the D.C. District Court of Appeals, where he has served since 1997. But we’ll come back to Garland later.

Let’s move right along on to the so-called rules. For a party hell-bent on preserving the “original intent” of the constitution, it sure is flexible on the definition of “rule.” The “Thurmond rule” contends that the Senate will not confirm nominees to the judiciary after a certain point in an election year.

Named after former Senator Strom Thurmond (R–SC), the rule originated in the 1968 fights over Lyndon Johnson’s Supreme Court nominations, which Thurmond on.

Since then, this partisan suggestion has only been used when politically advantageous to the party trying to block the nominee. And yes, both parties have used it since 1968. But other than when the nominees were blocked in 1968, no one treats it as a rule. It is the Thurmond Myth.

The “Biden Rule” is named after then Senator and current Vice President Joe Biden (D–DE). This rule, as it is often called, actually is more of a suggestion taken from a speech that Biden gave as the Chairman of the Judiciary Committee in 1992. He called for no nominees to be considered until after the election, during the lame-duck period before the next President takes office. (Quick side note, Republicans. Stop calling Obama a lame-duck President. That’s not until after the election.)

But still, Biden’s actual comments are usually glossed over with no context. He gave this speech with no nominee to consider and no vacancy to fill. He had been concerned with the growing partisan divide over judicial hearings, as Clarence Thomas’ divisive hearings had been in October of the previous year.

Even so, the Senate never voted on his suggestion, and now the GOP is using it as a lame excuse to block the nominee while giving Biden some respect for maybe the first time ever. Had enough yet? Good, me neither.

This brings me to the last Republican bastion of argument: precedent. Justice Scalia spent his career as a direct interpreter of the Constitution. He contributed a strong conservative voice to the Court for many years. Still, Republican leaders tarnish his legacy by forging fake precedents to reject anything Obama suggests.

As previously mentioned, Cruz and Rubio have proudly stated the “long tradition” of not nominating and confirming justices in an election year.

Those few words are the tricky part, though. See, the thing about precedent is, you need a real set of several instances from the past to back up that “long tradition.” There has really only been two instances in the past 80 years when this situation has even happened at all. In 1940, when F.D.R. appointed Justice Frank Murphy and was confirmed, and in 1968.

That last one sound familiar? It should, because it is when Thurmond refused to confirm any Johnson nominee. This is the only instance that holds to that model because of the phrasing of their comments. Cruz specified nominated and confirmed, which disqualifies those nominated before the election year but confirmed during one, of which current Supreme Court Justice Anthony Kennedy is one, who was nominated in 1987, and confirmed in 1988. There is no tradition of preventing nominees, only a hunger for preventing Obama any victory toward preserving his legacy.

Now, back to Garland. GOP leaders, the only people that will buy your arguments are the ones already voting for you, so why do you stall? Garland is for all intents and purposes left leaning, far more to the left of the center than Justice Kennedy is.

Still, Obama has given you the most moderate candidate
his party would allow. Many are still upset he did not appoint someone more liberal. Garland leans conservative on criminal cases and has a mixed record on government transparency. On an even more basic level, he is is an older, white male.

He is incredibly qualified to be on the Supreme Court. He clerked for Justice William Brennan in the 1970s, served as a federal prosecutor for the Oklahoma City bombings in 1992, and has served on the D.C. Court of Appeals since 1997, and as its Chief Justice since 2013.

What are your options? Let’s say you manage to delay until the next President takes office. Hillary gets elected, and nominates someone more liberal, with a newly gained Democratic Senate? Or, god-forbid, Trump gets elected, and he could nominate anyone. Maybe he’ll go Caligula on you and nominate his pet horse. Is that really what you’d prefer?

My point is, if the GOP really wants to improve its general election chances, it needs to take this bargain deal now while it can; there won’t be one better. They should show the people they talk incessantly about that they can make a compromise.
Stop the obstruction. Confirm Garland.