Constitution Check: What is the reason the Senate GOP won’t act on Judge Garland?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, explains how the future of the court is very much on the line right now in the Merrick Garland nomination battle.

THE STATEMENTS AT ISSUE:

“Tomorrow, Judge Garland will travel to the Hill [the Senate] to begin meeting with senators one-on-one.  I simply ask Republicans in the Senate to give him a fair hearing and then an up or down vote.  If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair.  It will mean everything is subject to the most partisan of politics, everything.”

– Excerpt from remarks by President Obama on March 16 in the White House Rose Garden, announcing his nomination of federal appeals court Judge Merrick B. Garland to replace the late Justice Antonin Scalia on the Supreme Court.

“The next Justice could fundamentally alter the direction of the Supreme Court….so the American people should have a say in the court’s direction….The American people may well elect a president who decides to nominate Judge Garland for Senate consideration.  The next president may also nominate someone very different.  Either way, our view is this: Give the people a voicc in the filling of this vacancy….It is the principle, not the person.”

– Excerpt from a speech on the Senate floor on March 16 by the majority leader, Republican Mitch McConnell of Kentucky, reacting to Judge Garland’s nomination.

“It’s important to remember the type of nominee President Obama said he’s seeking.  He says his nominee will arrive at ‘just decisions and fair outcomes’ based on the application of ‘life experience’ to the ‘rapid changing times.’  The so-called empathy standard is not an appropriate basis for selecting a Supreme Court nominee.”

 – Excerpt from a public statement on March 16 by the chairman of the Senate Judiciary Committee, Iowa Republican Charles Grassley, reacting to the Garland nomination.

“The Obama administration has demonstrated that it cannot be trusted to respect the rule of law, the Constitution, and the limits of its own authority. So it should be no surprise that the American people would be highly skeptical that any nominee this president puts forth would be acceptable.”

 – Excerpt from a public statement on March 16 by Casey Mattox, a senior staff counsel with the legal advocacy group, Alliance Defending Freedom, one of several conservative organizations urging the Senate not to take any action on the Garland nomination.

WE CHECKED THE CONSTITUTION, AND…

 The founding generation that wrote the Constitution was entirely familiar with the dueling “factions” that were the equivalent then of today’s dueling political parties.   In fact, one of the main reasons the draftsmen wrote checks and balances into the Constitution’s structure was to limit the capacity of any such faction to gain a dominant role in managing America’s public affairs.

It is entirely likely, then, to assume that the founders would not have been surprised at all that the makeup of the Supreme Court of the United States would be a prize that the factions would vie to control.  It was not powerful at its very beginning, but it was not long before the Supreme Court was having a profound influence on law and governance of the nation, and that authority would only grow over time.

Since the death of Justice Antonin Scalia created a vacancy on the court last month, there has been much talk in Washington, and on the political stump, about constitutional “duty” in filling that vacancy.   Each side has marshaled its version of nomination history, and each side has summoned up constitutional experts to pronounce where “duty” supposedly lies.

Elected officials, as political beings, are strongly inclined to frame their public debate on lofty ideals, and are quite reluctant to admit that they might have mere politics in mind when they take a position on a prominent question.

After President Obama on Wednesday made known his selection to replace Justice Scalia – a highly respected federal judge, Merrick B. Garland – one could check the flow of statements being made all across Washington about who was or was not shirking their constitutional duty.

Since soon after Justice Scalia died, the Senate’s GOP leaders have been saying they will do nothing to act on any nominee, until the people have spoken at this year’s presidential election.  The White House and its supporters responded that the president’s powers had not yet ceased to exist.

But amid the rhetoric, there is a simple truth that has everything to do with motive, on both sides of what now will be the jousting over Judge Garland.  Although some who insist that they know what that judge’s record on the bench conveys, there is simply no doubt – none whatsoever – that his views are considerably more liberal than those espoused by Justice Scalia.  He might be accurately characterized as a “moderate,” but even that would place him to Scalia’s left.

And, given the ideological lineup of the eight other Justices, the replacement for Justice Scalia, whoever it is, will be in a strong position to tilt the court leftward or rightward.  Scalia was the stalwart of the most conservative bloc.  A Democratic nominee almost by definition would provide a new ally for the four liberals already serving.  A Republican nominee very likely would keep the four-member conservative bloc intact, with the centrist Justice, Anthony M. Kennedy, still holding the decisive vote in the most important cases.

The simple reality is that the future of the court is very much on the line right now, even though that has not gained as prominent a position as it should have in the presidential primary debates this election season.  There is a near-certain prospect that, whoever enters the White House next January will be in position (if the Senate resistance to Garland prevails through the year) to pick a nominee whose influence will be felt long after that president has left office.

That is a prize worth fighting for, no matter whether the players in this drama are going to be candid about why they are fighting.