Senate slams a political door on court nominee


Federal appeals court judge Merrick Garland is President Barack Obama’s nominee for the Supreme Court.
Federal appeals court judge Merrick Garland is President Barack Obama’s nominee for the Supreme Court. AP

We know what’s going to happen with President Barack Obama’s nomination of federal Judge Merrick Garland for a seat on the Supreme Court.

Nothing, says the man who has the power to decide, Senate Majority Leader Mitch McConnell of Kentucky. No hearing before the Judiciary Committee, no vote on the Senate floor.

In McConnell’s case, not even the usual courtesy meeting, although he did call Garland personally to tell him he was not invited.

None of this is a surprise. It’s what McConnell has been saying since the day a little over a month ago when Justice Antonin Scalia died suddenly while on a trip in Texas, creating a vacancy on the high court.

Everything will wait until after the election.

“The American people may well elect a president who decides to nominate Judge Garland for Senate consideration,” McConnell said. “The next president may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.”

Does the Constitution contemplate a popular vote as part of the process of filling a Supreme Court seat? No, and the Founders were quite deliberate in that decision.

They constructed a court intended to be above the political fray, not subject to popular opinion that might be fleeting and not beholden to either of the other two branches of government.

The president cannot appoint a new justice without the advice and consent of the Senate. The Senate cannot name a new justice on its own.

Republican senators, because they hold a majority of Senate seats (54 of 100), have the power to withhold the slightest movement that might lead to consent.

Not because Garland is not worthy, some of them say and as even McConnell implied, but because they want their own political base to see them as resisting Obama.

There is real anger in that base over some decisions from the court — in particular, last year’s rulings recognizing the right to same-sex marriage and for the second time allowing the Affordable Care Act to survive.

Some, including GOP presidential candidate Sen. Ted Cruz of Texas, have called for periodic judicial retention elections to determine whether Supreme Court justices should keep their seats or be replaced.

It is not good to subject the Supreme Court to politics. Justices should bow only to the Constitution, not political winds.

McConnell and Senate Republicans will achieve their goal of delaying this nomination because they can, not because they should.