Obama makes Supreme Court nomination

by |
(Bloomberg) -- President Barack Obama nominated federal appeals judge Merrick Garland to the U.S. Supreme Court, setting off a test of wills with Senate Republicans who stuck to their vow not to consider confirming anyone while the president remains in office.

Garland is “widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence,” Obama said in the White House Rose Garden on Wednesday with the judge, 63, by his side.

Obama’s choice intensifies an unprecedented dispute between the White House and Senate Republicans that will dominate the final 10 months of his presidency. Republican leaders say a replacement for the late Justice Antonin Scalia, with the potential to swing the court’s ideological majority, should be decided by Obama’s successor.

Senate Majority Leader Mitch McConnell, a Republican, reiterated that his chamber won’t consider any nominee put forth by Obama.

“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,” McConnell said on the Senate floor less than an hour after Obama’s announcement.

In his remarks, the president emphasized that Garland, who oversaw the U.S. Justice Department’s investigation of the Oklahoma City bombing and successful prosecution of Timothy McVeigh, was strongly supported by Republican Senator Orrin Hatch of Utah when he was nominated to the federal appeals court.

"I simply ask Republicans in the Senate to give him a fair hearing and then an up or down vote,” Obama said. “If you don’t, it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process of nominating and approving judges that is beyond repair."

Garland is an ideologically moderate nominee who in other contexts would have broad bipartisan appeal. When Obama considered Garland for a high court vacancy in 2010, Hatch called the judge "terrific" and said he could be confirmed to the Supreme Court "virtually unanimously."

Public Service

Garland choked up as he thanked the president for choosing him.

“For me, there could be no higher public service than serving as a member of the United States Supreme Court,” he said, crediting his parents with instilling a sense of public service in him and his siblings.

“People must be confident that a judge’s decisions are determined by the law and only the law,” Garland said. "He or she must put aside personal preferences and follow the law, not make it."

McConnell of Kentucky and Judiciary Committee Chairman Chuck Grassley, an Iowa Republican, have said they would neither hold hearings on a nominee nor schedule a vote before the presidential election in November.

"A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests," Grassley said in a statement after Obama’s announcement.

Hatch said in a statement, “the right course of action is to wait until after this year’s election to consider a nominee to fill Justice Scalia’s seat.”

Kirk Relents

One Republican, Senator Mark Kirk of Illinois, who is facing a tough re-election fight, said he was willing to consider confirming Garland.

The White House has cast Republicans’ position as unprecedented brinkmanship that defies the Constitution. In the choice of Garland, Obama seeks to apply political pressure on Republicans by sending to the Senate a nominee who is difficult to dismiss as too liberal.

The president’s overtures to Senate Republicans--including rounds of telephone calls and a meeting in the Oval Office--have largely been rebuffed, as Grassley has not budged on his pledge to block the Obama’s nominee.

The vetting process, which began shortly after Scalia died on Feb. 13, was immediately shrouded in a partisan politics as Democrats and Republicans weighed the impact on the presidential election.

Judge Srinivasan

Obama passed over younger justices with more potential to swing the court’s majority decidedly leftward, such as Sri Srinivasan, 49, a judge on Garland’s court, who was viewed as the favorite for the nomination in some Washington legal circles.

Garland’s resume bears similarities to that of Chief Justice John Roberts. Like Roberts, Garland is a Harvard Law School graduate who clerked for federal appeals court judge Henry Friendly and later took a seat on the U.S. Court of Appeals for the D.C. Circuit. Garland also clerked for Justice William Brennan and worked in the Clinton administration’s Justice Department, when he oversaw the Oklahoma City bombing case.

Garland would be the oldest Supreme Court nominee since President Richard Nixon selected 64-year-old Lewis Powell in 1971.

A Chicago native, Garland graduated from Harvard College. Between stints in the government, he was a partner at Arnold & Porter LLP in Washington.

John Marshall

President Bill Clinton first nominated Garland to the D.C. Circuit in 1995. That year, Garland told the Senate Judiciary Committee that the Supreme Court members he most admired were Chief Justice John Marshall and Justice Oliver Wendell Holmes. Garland promised to try to be “as brief and pithy” as Holmes.

After the Republican-controlled Senate didn’t bring the nomination up for a vote, Clinton renominated Garland in 1997. He then won confirmation on a 76-23 vote, overcoming Republican contentions that the appeals court didn’t need an additional judge. Seven Republicans still in the Senate voted for his confirmation then.

Several important issues hang in the balance for the court, where Scalia served as an outspoken defender of conservative causes for three decades. With eight justices currently on the court, cases on abortion, immigration and unions could end up in a 4-4 split. In that case, lower court decisions stand but don’t set national precedents.

Republicans have cast Obama’s effort to name a justice as a pivotal battle, the outcome of which would tip the balance of the court for decades to come. Senator John Cornyn, a Texas Republican, said the president’s choice would probably be treated like “a piñata” by the Senate.

Obama considered several appellate court judges who received bipartisan backing in the past. Bipartisan support for a lower level judicial appointment doesn’t necessarily mean a smooth confirmation for a Supreme Court position.

Robert Bork, who was unanimously confirmed for a circuit court position in 1982, was rejected by the Senate 42-58 for a Supreme Court position in 1987. The vacancy was eventually filled in 1988 by Justice Anthony Kennedy, a confirmation the White House has pointed to as precedent for an election-year Supreme Court appointment.

Ideological Moderate

If confirmed, Garland would be the third justice Obama has appointed to the bench, and the only white male. Obama also appointed justices Elena Kagan and Sonya Sotomayor, and Garland made his short list before those nominations as well. Garland’s judicial record suggests he is the most moderate judge, ideologically, that Obama considered for Scalia’s seat.

On the D.C. Circuit, Garland wrote for the court in 2015 when it unanimously upheld a 75-year-old ban on federal contractors making federal campaign contributions. “The concerns that spurred the original bar remain as important today as when the statute was enacted,” he wrote.

In 2014, Garland led a three-judge panel that upheld the conviction of a former U.S. House committee staff member for illegally taking World Series tickets and a visit to a strip club from Jack Abramoff’s lobbying group in return for his influence on a federal highway bill.

He wrote a 3-0 decision in 2008 rejecting the government’s “enemy combatant” designation of a Chinese man being held at Guantanamo Bay, the U.S. naval base in Cuba.

Campaign Impact

The nomination battle has already impacted the 2016 presidential campaign, with all Republican candidates saying a new president should be sworn in before a new justice takes the bench for a lifetime appointment.

Democratic candidates Bernie Sanders and Hillary Clinton have each accused Republicans of trying to de-legitimize Obama by blocking his Supreme Court nominee.

“Some are even saying he doesn’t have the right to nominate anyone, as if somehow he’s not the real president,” Clinton said last month at the Schomburg Center for Research in Black Culture in Harlem.

About 63 percent of Americans believe the Senate should hold hearings on Obama’s nominee, according to a Washington Post-ABC News poll that was released March 10, before the nomination was announced. About 32 percent said the Senate shouldn’t hold hearings.

Australasian Lawyer forum is the place for positive industry interaction and welcomes your professional and informed opinion.

Name (required)
Comment (required)
By submitting, I agree to the Terms & Conditions