On Strategy and SCOTUS Nominations

I had a few interesting email conversations with readers yesterday in regard to Barack Obama's nomination of Judge Merrick Garland to the Supreme Court this week.  I sincerely wish, and trust me when I say this, that the framework of the discussion had been different.

In principle, I actually don't have a problem with the president making the nomination.  I actually would make a nomination if I were president myself, and would advocate for my nominee.  There is nothing in the Constitution that says anything different, and in one of the few points I would agree with Obama on, I cannot truly conceive of a rationale not to nominate someone.

The other part of this that is almost pointless, however surprisingly so, is Judge Garland's qualifications, which are essentially irrelevant at this point.  He is clearly of sufficient experience, as chief judge on the circuit in which he now sits, to be at least considered as a justice of the Supreme Court.  That doesn't say that I support him but, on his own experience, he would merit Senate consideration before deconstructing his opinions.

There is, of course, a third part before we get to the actual point I want to get to.  That is the fact that those opinions of his I just mentioned are now being evaluated not for judicial consistency or rational thinking, but by political spectral analysis.  That, I have a huge argument with.  Since "borking" became a verb, it has been a particularly Democrat-driven approach in the Senate to evaluate candidates for SCOTUS based on political viewpoints, as expressed in or derivable from their written opinions.

I really hate that.  I interpret the Constitutional directive as being that the president should be given relatively wide leeway to nominate justices as long as they are adequately experienced and qualified.  But I also believe that the experience of the past 40 years has effectively and permanently neutralized that position.  It is now the way of the world that it is OK for a leftist Senate to reject an amply-qualified candidate based solely on the conservatism of his or her opinions (and therefore, to a much lesser extent, vice versa -- the "lesser extent" is only because the press makes it more difficult on a conservative Senate).  That's where we are.

So we set aside Judge Garland completely from the equation; it matters not who he is, what he believes in, what he has ever written until now and what experience he has.  Poof.  It is all about whether the Senate will even take up the nomination before the election.  Except there is one thing -- though his track record is poor on the Second Amendment, Judge Garland is, by all current information, considerably less leftist than someone who would have been nominated by this president two years ago, or someone who would be nominated by a new Democrat president if one were tragically elected in November 2016.

It's nice to hear a prominent authority agree with me, but on Thursday I heard Sen. Flake of Arizona tout the exact strategy I would take, as if he had read my mind (I hadn't written this yet on line).  And that is very simple.

We have a nominee and the action now rests with the Senate.  And the operative word should be "rest."  As in "do nothing."

Mitch McConnell, the Senate majority leader, has at least one thing on his side, which is a series of well-documented quotes (thank you, press!) from people like Joe Biden and Barack Obama in absolutely comparable situations with a Republican president, saying how they shouldn't act on the analogous nomination late in a Republican president's term.  McConnell even cheerfully referred to Biden's explicit statement, all over the news now, as the "Biden Rule."

So knowing that, and knowing that we've no idea who the next president will be, or of what party, it would seem to me there is an easy solution.  Merrick Garland wants to be confirmed.  He isn't going to withdraw his nomination anytime soon.  So what the Senate should simply do is slow-roll the heck out of things.  Schedule the Judiciary Committee hearings for, say, September.  Make them once every two weeks.  Get an idea of how Judge Garland actually thinks and what kind of justice he would make.  By November, they ought to have a good idea.

Then on the day after the election, call a vote.  If a Democrat wins the White House, confirm him on the spot as being far less damaging than someone the new president would appoint.  If a Republican wins, then schedule a vote on December 31, the last day of the Senate term, and reject Judge Garland.  The new president would make the appointment, and we would get, hopefully, a much more conservative new justice.

The only downside would be if a Republican were to win the election but the Senate were lost to the Democrats -- Obama's term would run 20 days past the start of the new Senate, and with an incoming Democrat Senate, once the outgoing Senate rejected Judge Garland, Obama could appoint a replacement after January 1st, who would be far more liberal, and the new Senate would confirm immediately.  If that were the case, the current Senate would have to confirm Judge Garland after election day, same as if a Democrat president were elected.

This is precisely what Sen. Flake said on TV Thursday.  Great minds think alike.

I hate to be writing this.  I have so much more belief in the institution of the Supreme Court than the above political strategy would seem to imply.  But actions have consequences, and the Democrat rejection of Judge Bork strictly on political grounds, decades back, has had the consequences of politicizing the SCOTUS appointment process more than it should ever be so.

It is, unfortunately, not different; it is what it is.

It didn't have to be.

 Copyright 2016 by Robert Sutton
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