Obama Makes the Senate a SCOTUS Offer It Can’t Refuse (but Will Anyway)
Policy + Politics

Obama Makes the Senate a SCOTUS Offer It Can’t Refuse (but Will Anyway)

© Kevin Lamarque / Reuters

Until today, how President Obama would handle the politically fraught decision about whom to appoint to fill deceased Supreme Court Justice Antonin Scalia’s seat on the high court was an open question. In a Rose Garden ceremony at the White House this morning, he answered it: He would take the high road.

And in doing do, he has left senate Republicans in a tricky position.

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Obama announced the nomination of Merrick Garland, the chief judge on the U.S. Court of Appeals for the D.C. Circuit. A judicial moderate with sterling qualifications and a track record of public service, Garland was a federal prosecutor before becoming a judge. Among other things, he led the prosecution of terrorist Timothy McVeigh in the wake of the Oklahoma City federal building bombing in 1995, and the prosecution of Theodore Kaczynski, the “Unabomber.”

In his remarks, Obama said Garland is “widely recognized … as one of America’s sharpest legal minds.” Addressing senate Republicans, he noted that many of them have personally recommended Garland to him for the Supreme Court, and added, “I said I would take this process seriously and I did. I chose a serious man and an exemplary judge.”   

He said, “I have fulfilled my constitutional duty. Now it’s time for the Senate to do theirs.” 

Congressional Republicans preemptively declared, weeks ago, that they would refuse to consider any nominee at all from the Obama administration, preferring to leave Scalia’s seat empty until a new president takes office in 2017. There was never any real question though of Obama declining to make a nomination. The only question was whether his choice would represent an effort at compromise or a thumb in the eye of obstructionist Republicans.

Garland is plainly the former. He has earned praise from both Democrats and Republicans over the years. When current Senate Judicial Committee Chairman Chuck Grassley of Iowa announced in 1997 that he would not support Garland’s nomination to the Court of Appeals, he was quick to say that he “could find no fault” with Garland as a jurist. His objection, he said, was made purely on the basis of his belief that the court was overstaffed.

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An obviously emotional Garland teared-up during the Rose Garden announcement, calling the nomination the greatest honor of his professional life, while thanking Obama and acknowledging his own wife and two daughters.

To many, Garland seemed at first like an odd choice. As a 63-year-old white man, he doesn’t tick any of the empty boxes on the court in terms of the diversity important to Democrats, and his age suggests that he will not remain on the court for decades after Obama leaves office.

But the logic of Obama’s choice became clear when Senate Majority Leader Mitch McConnell took the floor of the Senate not long after the Rose Garden announcement was complete.

In reiterating his promise to deny Garland both a hearing and a vote, McConnell said, “It seems clear that President Obama made this nomination not, not with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election.”

But that’s going to be a very hard sell for McConnell, considering the other options Obama had at his disposal.

In an election season where a large portion of the GOP is already supporting Donald Trump, a candidate associated with bigotry and xenophobia, the cynically political kill-shot would have been to nominate a minority candidate. The president could have forced the GOP to either confirm his nominee or leave a well-qualified judge, who happens to belong to an ethnic or racial minority, twisting in the wind while Democratic activists accused the GOP of racism.

In fact, that’s plainly what Republicans expected him to do.

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 “The President told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him," Utah Sen. Orrin Hatch told the conservative website Newsmax over the weekend. “[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.”

And Obama had the opportunity. Among others, the administration’s short list reportedly included Paul Watford, a judge on the U.S. Court of Appeals for the Ninth Circuit, who is African-American, and Sri Srinivasan, who serves with Garland on the D.C. Circuit Court of Appeals, and is Indian-American.

Watford and Srinivasan are also both considerably younger than Garland – meaning that Republicans also can’t credibly argue that Obama is trying to force them to accept someone who will sit on the court for 30 or even 40 years.

At this point, Republicans appear united in their determination to deny Garland so much as a hearing – insisting that they are acting on “basic principle” despite the fact that the refusal is unprecedented in the post-Civil War history of the United States.

McConnell restated his intention to refuse to so much as meet with Garland in an interview with a CNN reporter Wednesday morning, and on the Senate floor repeated his refusal to authorize a hearing or a vote.

“The decision the Senate announced weeks ago remains about a principle, not a person,” McConnell said, then repeated, “About a principle, not a person.”

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His decision also received support on the other side of the Capitol.

“This has never been about who the nominee is,” House Speaker Paul Ryan said in a statement. “It is about a basic principle. Under our Constitution, the president has every right to make this nomination, and the Senate has every right not to confirm a nominee. I fully support Leader McConnell and Chairman Grassley's decision not to move forward with the confirmation process. We should let the American people decide the direction of the court.”

That’s the GOP’s story, and they are apparently sticking to it. But on the campaign trail from now until the November elections, Democrats will be telling a different one. They will offer voters a tale about a Republican Party that has become so blindly partisan that it ought not to have control of the Senate any longer.