With the selection of Merrick Garland, President Obama has exercised his constitutional power to nominate a justice to the Supreme Court. The Senate should now exercise its constitutional power not to act on that nominee.
Garland’s record as a Clinton-appointed member of the D.C. Circuit Court of Appeals since 1997, and as its chief judge since 2013, offers no reason to believe that his addition to the Court would provide anything other than a reliable fifth vote to the Court’s liberal bloc. In 2002, dissenting from a ruling striking down the Environmental Protection Agency’s “Haze Rule,” he sought to expand the agency’s power under the already sweeping Clean Air Act. In 2007, when a three-judge D.C. Circuit panel let stand a ruling striking down Washington D.C.’s restrictive handgun law (a decision the Supreme Court upheld in D.C. v. Heller), Garland voted to grant Mayor Adrian Fenty’s appeal to rehear the case before the full court. His record places him squarely in line with President Obama’s two other nominees, Justices Kagan and Sotomayor, and there is no reason to believe he would vote differently if confirmed.
The Senate has no obligation to give the president’s nominee a hearing (let alone a vote), and it shouldn’t. For exercising their prerogative, Senate Republicans will be scolded as “obstructionists” whose refusal to act on Garland’s nomination constitutes nothing less than a “dereliction of duty.” But they can direct all Democratic complaints to Chuck Schumer, who in 2007 declared: “Given the track record of this president and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee
in extraordinary circumstances” (emphasis in original).
Schumer was within his rights. And the case for waiting for a new president is stronger now, in the middle of an election. The Supreme Court can conduct its business for the next year without any difficulty — there is no reason for Senate Republicans to capitulate to Democrats’ demands. They should hold the line until the next president is elected. One hopes that he or she will choose a nominee who, like Justice Scalia, will be faithful, first and foremost, to the Constitution.