It’s time for everyone’s favorite show “Judicial Theater” to start back up. Republican and Democratic senators are returning to Capitol Hill after the Easter recess, which means there’s going to be more and more hand-wringing and arm twisting on whether Judge Merrick Garland’s nomination to the Supreme Court should be approved. Senate Minority Leader Harry Reid tells Politico he sure thinks President Barack Obama is going to get his way and see Garland ascend to the high court.
“Instead of following Mitch McConnell off a cliff, Republicans are sprinting in the opposite direction. After spending the last two weeks with the people who elected them, a growing number of Republicans realize that refusing to do your job is not a sustainable position.”
This doesn’t mean Reid is telling the truth because only three Republican Senators have actually met Garland. Kansas Senator Jerry Moran had an aide tell National Review his meeting with Garland did nothing to convince him that Garland should be on the Supreme Court.
As Senator Moran has said, he is opposed to President Obama’s Supreme Court nominee. He has examined Judge Garland’s record and didn’t need hearings to conclude that the nominee’s judicial philosophy, disregard for Second Amendment Rights and sympathy for federal government bureaucracy make Garland unacceptable to serve on the Supreme Court. Senator Moran remains committed to preventing this president from putting another justice on the highest court in the land.
Democratic senators are apparently still planning to chip away at Republicans for not having one hearing on Garland’s nomination. But the GOP is promising not to waver on their plan. Via Politico (emphasis mine):
This week, Reid will take to the Senate floor every day to pummel Republicans. The Democratic Policy and Communications Committee, led by Sen. Chuck Schumer (D-N.Y.), is planning a host of events to highlight the need to get Garland confirmed this year. And Sen. Elizabeth Warren (D-Mass.) will hold a conference call with liberal activists on Monday night to keep their perceived momentum going…
Republicans insist their Supreme Court strategy is very much intact, and will remain that way.
“After a month-and-a-half of a Democrat political campaign, none of our members have changed their mind on this principled decision,” said Don Stewart, a spokesman for Majority Leader Mitch McConnell (R-Ky.) “But the Dems have certainly unified our base in support of our principled decision.”
McConnell may believe “the base” is unified, but it doesn’t mean the rest of GOP Senate actually is. If Democrats aren’t bloviating and some GOP members are starting to waffle on the Garland nomination, then McConnell is going to have to start doing his best cat shepherd imitation to keep everyone in line. This may be easier said than done, given how the Ex-Im bank vote turned out. It doesn’t mean it’s impossible to keep a Garland hearing from happening, but the Senate seems to be a wild card at times.
The Democrats seem to think the Republican-led Senate has to have a hearing on Garland as part of their constitutional duties. The only question is how people interpret the Constitution’s “advise and consent” clause when it comes to presidential nominees. The traditional interpretation in DC appears to be hold hearings and decide whether or not a nominee should be accepted. But isn’t the GOP’s decision to not hold hearings a version of “advise and consent”? Isn’t this saying to Obama, “Hey, we don’t like your nominee or think he should be on the Supreme Court” a form of “advise and consent”? I’m not suggesting this is the correct definition of “advise and consent” (even Heritage Foundation suggested in 2005 the clause was postnominational), but it shows how the clause can be interpreted multiple ways.
Maybe one reason why McConnell is taking such a hard stance against holding hearings is because he knows what the perception of the GOP in Washington is: have a stance, waffle, agree to modify stance whilst swearing to be against something, and then approve the thing they claim to be against. It’s a risky position to take, and could certainly backfire the next time the GOP holds the White House and the Democrats the Senate, but McConnell’s decision to stand firm on his “no hearings” pledge may not be a bad thing. It could also be seen as the GOP thumbing their nose at the Democrats for how some of George W. Bush’s nominees ended up being held up in committee without a vote (see Miguel Estrada) and never making it to the full Senate. All it means is whenever the next nomination happens it’s going to show how ridiculously political the entire judicial process has gotten. If only the federal government had decided to follow the Constitution from the beginning. That would have avoided this entire mess to begin with.