Bench Memos

What about Garland?

Some Senate Democrats and progressive activists are urging a filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court as retaliation for Senate Republicans’ refusal to consider President Obama’s nomination of Merrick Garland. The core of their argument is that Senate Republicans violated some longstanding norm of judicial nominations that requires payback. This argument rests on revisionist history, as I discuss in this VC post.

Any norm that the Senate should consider a judicial nominee late in a President’s term was long gone before President Obama assumed office. Judith Richards Hope was nominated to the D.C. Circuit in April 1988 and got no hearing and no vote solely so that her seat could be held open for (Senate Democrats hoped) President Dukakis to fill. Lillian BeVier and Terrence Boyle were nominated in October 1991 for open seats on the Fourth Circuit and they got no hearings and no votes because Senate Democrats wants to hold those seats open for a Democratic President to fill. Ditto one John Roberts, who was nominated in January 1992. I could go on.

One may claim that the Supreme Court is different, but there is only one Appointments Clause and, under Article III, the ninth seat on the Court is as discretionary as a lower court seat in that Congress created it and Congress can take it away. Further, the “Supreme Court is different” point seems to be deployed strategically, and in contradictory ways.  This argument is deployed to counter references to BeVier, et al., by suggesting that political obstruction is less acceptable when the Supreme Court is concerned. At the same time, the “Supreme Court is different” argument is deployed to defend the exclusion of Supreme Court nominations from the nuclear option, to suggest that political obstruction is more acceptable when the Supreme Court is involved. The only constant is that norms are to be binding when they constrain Republicans, but not when they constrain Democrats.  Senator Reid’s admission that he’d readily have gone nuclear over a Supreme Court nomination to ensure a Democratic nominee is confirmed is but icing on the cake.

What the Senate Republicans’ failure to consider Garland indicated was that Senate Republicans were unwilling to uphold prior norms at the cost of unilateral disarmament in the judicial nomination wars. We can lament that it came to this — I certainly have — but we should not accept a revisionist history of how the Senate’s refusal to consider Garland came to pass.


Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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