Judge Merrick Garland’s nomination to the US Court of Appeals for the D.C. Circuit in 1997 encountered similar obstacles to the ones he faces now for placement on the highest court in the land — a Republican majority in the Senate and a Democratic president who nominated him. Two decades ago, however, Republican Senators considered and confirmed Garland with a 76-23 vote.
Garland is a textbook candidate. He is recognized for his scrupulous adherence to the law and his “collegiality,” or ability to work well with colleagues. He practices judicial restraint and deference to federal agencies, as shown by his ruling history on the D.C. Circuit. This quality and respect for government institutions would help presidents regardless of party; Judge Garland would most likely refrain from excessively criticizing the administration’s agencies. So why are Republicans so hesitant to give him a fair hearing? Of the candidates that were on President Obama’s shortlist, Garland leans more conservative, and is the best concession Republicans could receive from a liberal president. For a candidate nominated by President Obama, Garland does not move the court left by as great a margin as a nominee like Loretta Lynch would. Furthermore, refusing Garland comes at a risk of an outrageous Supreme Court Justice nominee from President Trump or a much more progressive one from President Clinton. Last but not least, Merrick Garland has won respect from prominent Republicans for his work. In 2005, now Chief Justice Roberts said to the Senate Judiciary Committee, “Any time Judge Garland disagrees, you know you’re in a difficult area.”
The Senate Republicans’ rejection of Garland is the paradigm of polarization: Judge Garland is a liberal centrist but also a candidate originally praised by Republicans. Both sides appreciate him ideologically, but he has been denied his position due to factors out of his control. Furthermore, the media portrays this rejection as unprecedented, though as shown by the “Biden rule”, the same partisanship has been firmly embedded into the congressional politics of nomination and confirmation since 1992.
The debate of whether to replace Justice Scalia with Judge Merrick Garland is part of a larger partisan problem that has plagued American politics and Washington D.C. for over a decade. Since the presidencies of George W. Bush and Barack Obama, partisan differences have increased at higher levels. (Partisan differences were measured using 48 value questions and the percentage difference between Republicans and Democrats.) Compared to the years from 1987 to 2002, in which partisan differences fluctuated at 9 to 11 percent, 2012 showed an increase to an 18 percent difference. As a result, the most recent argument is not about the viability of the nominated candidate, but is rather fueled by party politics in the year before a momentous presidential election.
Majority Leader Mitch McConnell remains unwavering in his declaration that he will wait until a new president is elected before considering a nominee for the US Supreme Court. As majority leader, he commands incredible control over his party and has placed an unbreakable hold on the hearing. The ostensible reasoning behind the roadblock is his claim that the American people deserve to have say in who replaces Scalia. Postponing a nomination would allow the next president, whoever it is, to select a justice complementary to the president’s political leanings.
Senator Orrin Hatch, an experienced Republican on the Senate Judiciary Committee and President pro tempore, is not looking for unity either. Prior to President Obama’s Rose Garden announcement, Hatch suggested “Obama could easily name Merrick Garland, who is a fine man…He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.” Despite his immensely contradictory statement, Hatch still blatantly refused to meet with Garland after the nomination.
But more recently, the Senate Republicans have ignored their quest to allow the American people to select the next Supreme Court justice. Americans are in considerable agreement that, indeed, Judge Garland’s Senate hearing is being prevented due to political reasons, not productive ones. 73 percent of Americans also believe that the fight in Washington is occurring due to petty partisanship, whereas only 25 percent of Americans believe that Senate Republicans are doing what they think is best for the country. This public opinion poll shows that the American people do not want this kind of political maneuvering and would rather Garland be judged for his merits.
One explanation as to why the Senators are ignoring public polls and democratic signals is the overwhelming power of interest groups. Political scientists have studied interest groups’ influence in US Congress since the 1990s. Richard Smith of Carnegie Mellon University writes that the explosion of interest groups started in the 1960s and continued through the 1980s. And their growth and impact has hardly slowed. The Center for Responsible Politics found, from 2000 to 2010 the amount of funds spent lobbying more than doubled. This time around, the conservative group, the Judicial Crisis Network, has paid millions in advertising against the confirmation of Merrick Garland. The JCN targets both Senate Republicans and Democrats in trying to garner or prevent votes. Mediamatters.org claims, JCN “was founded to push through [George W.] Bush’s often-far-right nominees.” FreedomWorks is another conservative group expecting Senators McConnell and Grassley to maintain opposition. For senators working towards reelection, organizations like FreedomWorks are necessary for endorsements and campaign events.
Democrats claim that this nomination process presents the possibility of creating a dangerous precedent — one that ignores the Constitution and further ingrains the idea of a “lame-duck” presidency. Ian Millhiser, an editor at ThinkProgress Justice, in a discusion with democracynow.org, identified that the idea that an outgoing president should not confirm a justice is a new concept. Millhiser states that “a third of all presidents have had someone confirmed during the last year [of] their presidency to the Supreme Court. This idea that there’s some sort of rule that you are less — that Barack Obama is less the president because he’s in his last year, that’s something that hasn’t existed before.” This is true — setting a new, problematic precedent to spite the oppositional party is both unproductive and unnerving.
But the ranking officials in the Obama administration are similarly guilty of what Republicans are doing to them. Millhiser is partially wrong; this rule that a President is “less” in his last term was declared by no other than President Obama’s Vice President, Joe Biden. In 1992, then Senator Joseph R. Biden laid out the “Biden rules” and declared that President Bush should not appoint a Supreme Court nominee until after election time. In that same speech, he, like Senator Hatch, strongly recommended that the Senate Judiciary Committee not schedule hearings for confirmation, until election campaigns were over. His justification was that holding confirmation hearings during election season would not be fair to the nominee. Furthermore, both President Obama and Vice President Biden took part in the process of blocking nominations during their time in the Senate. Though not during an election year, in 2006, Senator Obama and 23 other senators supported a filibuster of Justice Samuel Alito, a nominee of President George W. Bush’s.
Partisanship is not Supreme Court-specific. While this case is certainly one of the flashier instances, Garland is far from being the only high-level federal official to be denied or postponed his job after receiving a nomination from the President. The New York Times found that of 143 positions, many have received similar treatment. Frustrated, the Times writes, “It’s clear that for Republican lawmakers, carrying out political vendettas and thwarting the president’s prerogatives are more important than having a functioning government.” This, however, only applies to President Obama’s term. As shown by the attempted blocking and filibustering against Justice Samuel Alito in 2006, both parties can play this game.
In conclusion, Mitch McConnell’s strategy is hardly new; it is not a Republican trademark or an unprecedented action. Rather, it speaks to the increasing polarization of American politics. Political pundits speak of polarization frequently and it is a great sound byte. But now, we see a pattern of party politics having lasting impacts on the structure and power of government branches. As President Obama said when announcing Garland’s nomination, “It is tempting to make this confirmation process simply an extension of our divided politics — the squabbling that’s going on in the news every day.” If Garland’s hearing occurs and he is confirmed, it would be a miracle and a sign that the US government is trying to find that increasingly narrow middle ground, just like its future justice aims to do.