Merrick Garland may have to wait until after Nov. 8 to win confirmation to the U.S. Supreme Court, if he has any chance at all.
President Barack Obama nominated Garland, chief judge of the U.S. Court of Appeals for the District of Columbia, the nation’s second most powerful court, to fill the vacancy created by the death of Justice Antonin Scalia, the court’s leading conservative.
Garland is considered the most conservative pick by a Democratic president in decades, albeit as a left-leaning centrist. Obama hoped to mollify the Republican majority in the Senate, but Garland is a long shot. Fourteen Republicans need to break ranks to avoid a filibuster and five to confirm.
Many liberal Democrats hoped for a woman or person of color — U.S. Attorney General Loretta Lynch, who is both, opted out — or a left-wing version of Scalia.
Democratic presidential candidate Bernie Sanders, I-Vt., said he would have picked someone “more progressive.” Terry O’Neill, president of the National Organization for Women, called the nomination “unfortunate.” “The so-called political experts ruled that the best choice for the highest court in the nation was a cipher — a real nowhere man.”
Actually, Garland twice lost out to women — including one of color — despite being on Obama’s shortlist. The president nominated Sonia Sotomayor, the court’s first Hispanic, in 2009, and Elena Kagan in 2010, when Democrats controlled the Senate.
Garland’s credentials as a U.S. prosecutor in cases involving the bombing of the federal building in Oklahoma City, the Unabomber and the drug conviction of Washington, D.C., Mayor Marion Berry are impressive.
Likewise, he has earned the respect of his judicial colleagues, although liberals and conservatives invariably will find fault with some of his decisions.
The New York Times recounted when Sen. Charles Grassley, R-Iowa, questioned John Roberts, then chief judge of the D.C. appellate court, during his nomination hearings in 2005 to become chief justice of the U.S. Supreme Court after being tabbed by President George W. Bush.
Grassley was concerned about the appellate court’s majority opinion he felt misinterpreted a bill he sponsored. Garland had dissented.
“The view that you have articulated,” Roberts responded, “was certainly presented in a compelling way by Judge Garland. “Anytime Judge Garland disagrees, you know you’re in a difficult area.”
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Garland, a Harvard Law School graduate from suburban Chicago, is a second cousin of Gov. Terry Branstad. But that hasn’t enabled him to gain favor with Grassley, a longstanding nemesis.
In 1995, Grassley helped block President Bill Clinton’s nomination of Garland to the D.C. appellate court without a vote. He called Garland “well-qualified,” but said the court’s workload didn’t require a full complement of judges. That perspective, we suspect, would have been different if a Republican president had made the nomination, a possibility with an election a year away.
After Clinton was re-elected, he nominated Garland again in 1997. Sen. Orrin Hatch, R-Utah, called him “a fine nominee … as good as Republicans can expect from this administration. In fact, I would place him at the top of the list.” Republican Sens. Strom Thurmond of South Carolina, Jon Kyl of Arizona and Jeff Sessions of Alabama shared that sentiment. Garland was approved, 76-23.
Grassley and Sen. Mitch McConnell, R-Ky,, now Senate majority leader, opposed him. That foreshadowed his current nomination, which, Grassley said, is “a question of the next president. Based on the principles we’ve laid out, it’s going to happen after Jan. 20, 2017.”
McConnell unearthed the “Biden rule” to defer consideration. In the run-up to the 1992 election, Biden, then a Democratic senator from Delaware and Senate Judiciary Committee chair, urged President George H.W. Bush not to fill a Supreme Court vacancy, which wasn’t even on the horizon, until after the presidential elections.
The current presidential race could further complicate matters.
If Republican front-runner Donald Trump becomes president, he has called one potential candidate for the U.S. Supreme Court “phenomenal” — his sister, Maryanne Trump Barry, the senior judge of the U.S. Court of Appeals for the Third Circuit in Philadelphia, a Republican appointed by Bill Clinton.
Some conservatives, though, have called her a “pro-abortion extremist” for striking down a partial-birth abortion ban because of vague language. Her nomination would create a no-win situation for GOP senators.
If either Hillary Clinton or Sanders wins — and Democrats recapture the Senate — it’s likely they would nominate someone more liberal to fire up the base, something that’s not happening with Garland.
Republicans may well delay any action on Garland’s nomination as a matter of politics, but the most pragmatic course of action would be to not dismiss him entirely. He could look a lot better to Republicans after Nov. 8.