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Law & the Courts

A Garland What-If

Would the debate over Judge Neil Gorsuch’s confirmation to the Supreme Court be going much differently if Republicans had held hearings on Judge Merrick Garland last year and then voted him down? I can’t prove it, of course, but I think the answer is no.

Taking up the nomination would obviously have increased the likelihood of confirmation, but a vote ending in rejection is not, I think, a crazy scenario to imagine. Republicans had 54 senators in 2016. President Obama’s previous nominee to the Court, Elena Kagan, had won the votes of only five Republicans—and three of those Republicans were gone by last year. Perhaps  a few Republicans would have said that they were voting no because they thought the seat should be filled by whoever won the 2016 presidential election, and would vote for Garland if President Hillary Clinton renominated him.

Under this scenario, we would have largely avoided arguments that Senate Republicans had somehow violated the Constitution. While the argument that the Senate has a constitutional obligation to hold hearings and a vote on a nominee is laughable, the argument that the Senate has a constitutional obligation to confirm a nominee is even more clearly laughable.

But what else would have changed? Democrats would still be outraged that Republicans had rejected a middle-of-the-road nominee who was unquestionably qualified in terms of professional competence and reputation. They might even be more outraged: Holding hearings and a vote would have led some Republicans to make Garland-specific arguments, and some of those arguments would have struck Democrats as reprehensible distortions (as indeed some of them probably would have been).

Democrats would have said that the seat was being stolen from them/President Obama/Judge Garland. They would have said that the election-year argument for voting no was a radical departure from existing norms. Some of them would have said that Republicans were refusing to show deference to President Obama because he is black.

In this alternative universe, I imagine we’d be in roughly the same place we are today. Liberal activists would still be demanding a filibuster of any conservative judge President Trump nominated, and Republicans would still be preparing to shut Supreme Court filibusters down. And some of the liberal op-eds we’re reading today about why Gorsuch should be filibustered could be run with just a few changed words.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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