President Barack Obama fulfilled his constitutional obligation Wednesday by nominating an obviously well-qualified jurist to serve on the U.S. Supreme Court.
Senate Majority Leader Mitch McConnell reacted by restating his intransigent stand that the Republican-controlled Senate would not deign to meet with the nominee, Merrick Garland, chief judge of the U.S. Circuit Court for the D.C. circuit, the nation’s most prestigious appellate court.
It is, McConnell claimed, a matter of principle. It’s not. It is obstructionist politics at its base and gives voters yet more cause for disgust with the state of discourse in Washington.
Senators are supposed to provide advice and consent. Rejection is a prerogative. But McConnell’s refusal to even meet with a qualified nominee and respected jurist drives the process further into dysfunction.
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McConnell cited what he called the Biden Rule, supposedly gleaned from comments then-Senate Judiciary Committee Chairman Joe Biden made in June 1992, as President George H.W. Bush was running for reelection.
In the part of Biden’s speech cited by McConnell, Biden said the Senate shouldn’t take up a Supreme Court nominee until the election had been decided. That was wrong. There is and should be no such rule, unwritten or codified. In another part of Biden’s speech not cited by McConnell, Biden said he might support a nominee, if the president were to consult with the Senate.
The nonexistent rule notwithstanding, there is a fundamental difference between then and now. There was no vacancy then and certainly no nomination pending. Obama acted now because Justice Antonin Scalia died a month ago, with nearly a year left in Obama’s term in office.
The president has presented the Senate with a wise and decent judge who spent 19 years on the bench, has a record of collegiality and has shown himself to be anything but an ideologue. As a federal prosecutor, Garland handled drug trafficking cases, gang cases and public corruption and terrorist cases, including the Oklahoma City bombing that left 168 people dead and the Unabomber murder case tried in Sacramento.
Obama bypassed others on the short list, Court of Appeal Judge Sri Srinivasan, 49, an immigrant from India, and Judge Paul J. Watford, 48, an African American who sits on the U.S. 9th Circuit Court of Appeals. Both clearly are qualified. Given their age, they could help shape the law for the next 30 years.
Garland is 63 and Jewish. Given his age, Garland would not likely match Scalia’s 30 years on the high court. Sen. Orrin Hatch, R-Utah, has gone out of his way to praise Garland, as have other Republicans. Rejecting someone with Garland’s credentials would be unprecedented.
As Obama said Wednesday, the failure to give Garland a fair hearing would add to the “endless cycle of more tit for tat and make it increasingly impossible for any president, Democrat or Republican, to carry out their constitutional function.”
This should matter in November and not solely because voters will be electing a new president. Control of the U.S. Senate is at stake. Democrats must take five seats to gain a majority from Republicans.
McConnell’s gambit won’t make much difference in the Senate race in California; Democratic Attorney General Kamala Harris or Rep. Loretta Sanchez almost certainly will replace Sen. Barbara Boxer.
But voters in Nevada, Colorado, Arizona, Illinois, Wisconsin, New Hampshire, Florida, Pennsylvania, Ohio and Florida might look askance at Republican candidates whose leader cavalierly dismissed a nominee of Garland’s stature.
The republic will not end if McConnell prevails and the Senate fails to act until after the November election. The Supreme Court will survive if it must get by with eight justices until 2017. But our system will be diminished. McConnell, who professes his love for the institution of the Senate, would bear that responsibility.