The Republican Senate Should Hold Firm on Supreme Court Nomination

by John Yoo

President Obama’s nomination of Merrick Garland to the Supreme Court demonstrates a desire to compromise with the Senate, but it should not change the calculus of the Republican majority to keep Justice Scalia’s seat open. Garland is the chief judge of the U.S. Court of Appeals for the D.C. Circuit, commonly described as the second-most important court in the land after the Supreme Court (and the bench on which Justice Scalia served first, as well as Chief Justice Roberts, Justice Ginsburg, and Justice Thomas). He has a reputation as a left-of-center judge, likely more moderate that the liberal bloc on the Supreme Court.

Choosing Garland indicates that President Obama hopes a moderate choice can get through the Senate. He has put aside the opportunity to choose a nominee who had no chance, but could be a convenient point of attack in the presidential campaign.

Nevertheless, Senate Republicans should keep Justice Scalia’s seat open at least until the November elections. The Senate has rarely confirmed Supreme Court nominees during a presidential election year, especially when opposite parties have controlled the Senate and the White House. The Constitution does not require the Senate to confirm anyone; it only requires the Senate’s advice and consent before the president can appoint a justice to office. The Republicans can await the outcome of the elections. If a Republican wins the presidency, then the people will have spoken in favor of replacing Justice Scalia with another conservative. If a Democrat wins, the Senate could confirm Garland or await a pick from Clinton or Sanders. But in either case, the American people will have had a say in filling a seat on a Court that has seized more and more issues from the political process. It is the least that democracy requires.

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