President warns Senate Republicans that refusing to consider his nomination of the 63-year-old progressive federal appeals court judge imperils democracy
Barack Obama dramatically intensified his dispute with Senate Republicans on Wednesday, warning as he announced his nomination of DC appeals court judge Merrick Garland to the US supreme court that continuing to block confirmation proceedings would inflict irreparable damage on the pillars of American democracy.
In an impassioned speech from the Rose Garden of the White House, Obama issued an unalloyed threat to the Republican leadership: begin the confirmation process or reap the consequences. He said that to do otherwise – as the Senate majority leader, Mitchell McConnell, has vowed to do – would imperil democracy itself.
“The reputation of the supreme court will inevitably suffer. Faith in our justice system will inevitably suffer. Our democracy will suffer as well,” the president said.
By appointing Garland, 63, the chief judge of the federal appeals court of Washington DC, Obama seeks to hit the sweet spot of the current dispute triggered by last month’s death of the influential conservative supreme court justice Antonin Scalia. Garland is widely seen as a moderate individual motivated by legal propriety as opposed to political point scoring, and has earned plaudits over the years from both sides of the aisle.
Among his admirers, Garland can count the Republican senator for Utah, Orrin Hatch, who has called him a “consensus nominee” and “a fine man”. John Roberts, the conservative chief justice of the supreme court, has also praised Garland’s “reasonableness”, memorably stating: “Any time Judge Garland disagrees, you know you’re in a difficult area.”
In the coming firestorm over the confirmation process for the empty supreme court seat, the White House is also likely to remind seven current Republican senators – Dan Coats, Thad Cochran, Susan Collins, Hatch, Jim Inhofe, John McCain and Pat Roberts – that they voted for Garland’s confirmation to the DC circuit 19 years ago.
As Garland tearfully accepted Obama’s nomination in the Rose Garden, he invoked his parents, Jewish exiles from Russia and eastern Europe, his wife and daughters, and recalled his most famous case as a prosecutor: the pursuit of the 1995 Oklahoma City bomber Timothy McVeigh. He said the experience of leading the prosecution of that terrorist act had underlined for him the importance of trust in the justice system.
“People must be confident that a judge’s decisions are determined by the law and only the law. He must be faithful to the constitution and statutes passed by Congress. Fidelity to the constitution and the law has been the cornerstone of my life and the hallmark of the kind of judge I have tried to be,” he said.
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Obama said that “to find someone with such a long career of public service who just about everyone respects and likes, that is rare. That speaks to whoMerrick Garland is, not just as a lawyer but as a man.”
Hillary Clinton, who could be deeply affected by the choice of Garland as nominee should she win the presidential election in November, expressed her approval of the decision. “President Obama has met his responsibility. He has chosen a nominee with considerable experience on the bench and in public service, a brilliant legal mind, and a long history of bipartisan support and admiration. Now, it’s up to members of the Senate to meet their own, and perform the constitutional duty they swore to undertake,” she said.
Obama’s meticulously moderate choice to replace Scalia, who for half a century helped to shape the dominant conservative voice on the supreme court, now puts the Republican senators under the spotlight. They have vowed to have nothing to do with any nominee, on the grounds that the people should decide through the next president who will enter the White House in January.
On the one hand, the shift from Scalia to Garland, were the latter confirmed, would undoubtedly move the top court sharply to the left by overturning the five-to-four, conservative-to-progressive balance that has held for years. That change could have vast ramifications for the landscape of American law, from the future of abortion rights and gun laws, to civil rights and the injection of money into elections.
On the other hand, the White House is calculating that were the Republicans to sustain their obstructionism and refuse even to look at as non-partisan a figure as Merrick Garland, it would expose them to the accusation that they have run roughshod over the US constitution in the cause of party politics. That could hurt them in November at the polls, Democrats are surmising.
McConnell immediately tried to turn Obama’s warning back on the president. He said it was not the Republican party that was politicizing the process, but Obama himself by attempting to force a supreme court appointment during an election year. “It seems clear that President Obama made this nomination not with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election,” the majority leader said on the floor of the Senate.
Though the House of Representatives has no formal role in selecting the nine supreme court justices, the Republican speaker of the House, Paul Ryan, waded into the dispute to back the controversial stance taken by his colleagues in the Senate. “This has never been about who the nominee is. 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,” he said.
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Republican presidential candidate Ted Cruz said: “I proudly stand with my Republican colleagues in our shared belief – our advice and consent – that we should not vote on any nominee until the next president is sworn into office. The people will decide.
Reince Priebus, the chair of the Republican National Committee, pledged in a series of tweets on Thursday morning that he “won’t stand by while Obama attempts to install a liberal majority” on the supreme court.
It may not presage well for Obama in his present tussle with the GOP that when Garland was up for confirmation to the DC circuit in 1997 it took the US Senate of that day – which was also Republican-controlled – 18 months to complete the confirmation process. The eventual vote was 76 to 23, with 32 Republicanssupporting him.
Garland is expected to go to Capitol Hill on Thursday to begin meeting with senators face-to-face. McConnell spoke to Garland on the phone Wednesday and declined to meet with him in person so as not to subject him to “more unnecessary political routines orchestrated by the White House”, McConnell’s spokesman told the Associated Press. He reiterated his position that he would not consider Garland’s nomination.
This is the third time that Obama has considered Garland for a supreme court position: he was a runner-up in the process that led to the appointments of both Sonia Sotomayor and Elena Kagan, in 2009 and 2010 respectively.
A native Chicagoan and Harvard graduate, Garland excelled in private law but chose to eschew fat salaries for the less lucrative but arguably more exciting world of public criminal prosecutions. In the immediate aftermath of the Oklahoma City bombing that ripped apart a federal building and killed 168 people, he was dispatched to the city to set up the early stages of the prosecution case, winning plaudits for gathering large amounts of evidence that led to the convictions of both McVeigh and Terry Nichols.
He was also central to the prosecution of the Unabomber, Ted Kaczynski.
He acquired his passion for being a judge by sitting at the feet of the liberal supreme court justice William Brennan, who was a champion of progressive policies such as opposition to the death penalty and support of abortion rights. Garland has had plenty of opportunity to wield similar progressive influence as chief judge of the DC appeals circuit which, given its location, frequently acts as arbiter in major cases concerning the federal government.
Among those were the 2008 judgment from the appeals court, led by Garland, that punched a hole in the Bush administration’s detention of so-called “enemy combatants” in Guantánamo Bay without any oversight from the civilian courts. The ruling ordered the US government to submit the cases of Chinese Muslims known as Uighurs to civilian judicial review.
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