Politics, not principle, drives Senate GOP’s Supreme Court obstinance

Let’s get one thing straight: There is not a single cherished principle involved in the Senate Republicans’ refusal to hold confirmation hearings for Judge Merrick Garland, President Obama’s Supreme Court nominee. Their opposition is entirely about partisan politics and appeasing the militant conservatives who have GOP senators cowering in fear of losing their jobs to right-wing challengers.

Garland, by every reasonable measure, is exceptionally qualified to replace the late Justice Antonin Scalia on the high court. Here is what one veteran observer of judicial matters said of him: “His intelligence and his scholarship cannot be questioned .… Mr. Garland’s experience, legal skills, and handling of the Oklahoma City bombing case have earned him the support of officials who served in the Justice Department during the Reagan and Bush administrations.”

The man who spoke those words of praise is Utah Sen. Orrin Hatch and he said them as the Republican chairman of the Judiciary Committee overseeing Garland’s elevation to the U.S. Court of Appeals for the District of Columbia Circuit in 1997. Now, however, Hatch opposes giving Garland a hearing. Over the intervening 19 years, Garland did not get worse, he only got better by every credible account. What changed was the political climate.

With vicious partisanship the rule of the day in our Republican Congress, Obama would have a hard time getting a hearing for Jesus Christ. Oklahoma Sen. Jim Inhofe told NBC News’ Chuck Todd that he spoke to Merrick on the telephone and said, “I will not support you or any other nomination of this president because that would be breaking new ground, and I’m not going to do it. And it doesn’t matter if Obama would nominate George W. Bush. I would still not do it.”

The “new ground” the Republican Inhofe referenced is the contention that allowing a lame-duck president to choose a nominee to the court in an election year would be a terrible break with tradition. That is actually not true, on two counts. One, in election year 1988 the Senate approved “lame-duck” President Ronald Reagan’s court nominee, Anthony Kennedy. And two, only by a big stretch in the meaning of lame duck can Obama or Reagan be considered lame ducks. A president only becomes a lame duck in that period after another person wins election to the office and before the inauguration. If lame duck now applies to any second-term president who cannot, by law, seek reelection, then only first-term presidents would be able to make court appointments.

Obviously, the canard about lame ducks is just a convenient cover for partisanship — a cover, it should be said, that Democrats have tried to use in the past when the president was a Republican. The real reason Republicans are refusing to do their job and hold confirmation hearings is that they are betting on the possibility that one of their own will be in the White House next year. That is what they mean when they say “the people” should have a voice in who replaces Scalia. It doesn’t matter in the slightest to them that the people have already spoken twice by giving Obama two terms in office. Republicans do not want to let the president replace Scalia, an ideological hero to the right, with anyone even slightly less conservative.

The bet is a risky one for Republicans, though. If a Democrat wins the presidency in November — whether it is Hillary Clinton or Bernie Sanders — GOP senators can expect to be confronted with a new nominee who will very likely be far more politically unpalatable to them than the moderate Garland. However, they do have an ace in the hole — or whatever gambling metaphor applies. If the election does not go their way, Republicans could rush Garland through hearings and get him on the court before the new president takes office and has a chance to put forward someone more liberal.

That outcome would actually be good for the country. The Supreme Court has been tarnished by the way it has been politicized in recent decades. As a sterling jurist and a moderating influence, Garland seems the perfect choice to help restore respect for the court — which is why Republican senators should give up their gamble and confirm Merrick Garland as soon as they can.