President Barack Obama has decided to challenge Republicans in the United States Senate by nominating Merrick B. Garland to become the 113th Supreme Court Justice to replace conservative Supreme Court Justice Antonin Scalia, who passed away recently. Normally this is a clear cut process where the nominee is vetted by the Senate, and then the Senate holds hearings on whether or not to advance the nomination to the full Senate for a vote for confirmation.
The 63 year old Garland is well known in Washington legal circles, receiving praise from both Democrats and Republicans. Speaking in a formal White House rose garden ceremony announcing his selection to replace Scalia, President Obama said, “I’ve selected a nominee who is widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence. Presidents do not stop working in the final year of their term; neither should a senator”, the President said.
President Obama pleaded with Republicans to allow his candidate an up or down vote on Garland’s appointment to the Supreme Court, saying, “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.”
Republicans were not buying Obama’s tactics whatsoever. Kentucky Senator and Senate Majority Leader Mitch McConnell went to the floor of the Senate to roundly reject Obama’s decision to nominate a Supreme Court judge during the middle of a presidential election year, regardless of the nominee’s qualifications. McConnell quickly signaled the end of Garland’s nomination process by rejecting him roundly, and called Garland later to say that he would not be receiving him at his office in the Senate Office Building, nor would the Senate be taking any action on his nomination.
McConnell has the power of the U.S. Constitution on his side. Article II, Section 2 of the United States Constitution reads as follows:
- The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
- He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
- The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
Some of the most important words in this section of our constitution are “by and with the advice and consent of the Senate“. What that means in layman’s terms is that the President must meet with members of the senate to arrive at a candidate selection for a nomination to the Supreme Court that is agreeable to everyone, and then be willing to listen to advice from the Senate as to whether or not the Senate finds any candidate acceptable, before the Senate will schedule hearings on a nominee.
President Obama tried to turn the process on its head, attempting to do an end run around the Senate, and just announce the nomination of Garland without any consultation with the Senate in advance, whatsoever. While it is a tactic that can be used in a presidential election year, Obama’s decision to announce a nomination violates an agreement made by Democrats when a Republican was sitting in the White House as commander in chief.
We can have a conversation about the credentials and the fitness for the nomination at any time; but that makes no difference since Obama broke with long established protocol and tried to shove a nominee down the Senate’s throat. This nomination is dead before the process even started in earnest.