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24 Monday, March 21, 2016<br />
The San Juan Daily <strong>Star</strong><br />
New York Times Editorials<br />
The Risk of Playing Politics With the Supreme Court<br />
By GREGORY B. CRAIG<br />
I<br />
WAS not there, but I can imagine President<br />
Obama in the Oval Office posing this question<br />
about Judge Merrick B. Garland: “Given<br />
this man’s lengthy history on the bench and his<br />
impeccable reputation, what can be said against<br />
him serving on the Supreme Court?”<br />
The answer from his advisers might have<br />
been: “Nothing, sir. But the Republicans don’t<br />
want to give up their decades-long control of this<br />
court, and they would rather ignore the Constitution<br />
and freeze the government than allow<br />
that to happen.”<br />
When President Obama picked Judge Garland<br />
to fill Justice Antonin Scalia’s seat, he was<br />
choosing an extraordinarily well-qualified jurist.<br />
Judge Garland has served on the bench<br />
for 19 years, the last three as chief judge of the<br />
United States Court of Appeals for the District<br />
of Columbia Circuit. No Supreme Court justices,<br />
even the greats, matched his record of federal judicial<br />
service at the time of their confirmation.<br />
His excellence as a jurist is surpassed only by the<br />
respect and affection people in both parties feel<br />
toward him.<br />
By sending the Senate a nominee of this quality<br />
and stature, President Obama has increased<br />
the political price Republicans will pay if they<br />
ignore their constitutional duty to provide advice<br />
and consent. That was the president’s objective<br />
from the start: Find a nominee beyond<br />
reproach who would, under normal circumstances,<br />
be confirmed without controversy. Force the<br />
Republicans to either back down or defend the<br />
indefensible.<br />
Political calculations are woven into every Supreme<br />
Court nomination, despite protestations<br />
to the contrary. The baseline is always that the<br />
nominee must be qualified and have a judicial<br />
philosophy in harmony with the president’s. But<br />
in narrowing the small field of candidates who<br />
meet those criteria, presidents consider many<br />
factors, including and especially a political one:<br />
Can this nominee win confirmation?<br />
While presidents often prefer to assert that<br />
their choices have nothing to do with politics,<br />
this year the Republicans have bluntly placed<br />
politics front and center by refusing even to consider<br />
Judge Garland until after the election. That<br />
unprecedented move has required the president<br />
to navigate a difficult political environment in<br />
deciding on a nominee.<br />
He has done that by starting with a known<br />
quantity: There are no secrets or surprises about<br />
Judge Garland, and his qualifications are clear. A<br />
federal prosecutor who oversaw the Oklahoma<br />
City bombing case, he was approved overwhelmingly<br />
and with bipartisan support by the Senate<br />
for the Circuit Court. Judge Garland has<br />
been on many people’s short list for the Supreme<br />
Court, including this president’s, for years.<br />
There is also nothing controversial in Judge<br />
Garland’s background. Judge Garland’s judicial<br />
philosophy, like the president’s, falls squarely in<br />
the mainstream. Senator Orrin G. Hatch of Utah<br />
and other Republicans had previously praised<br />
him effusively. Could the fact that, at 63, he is<br />
older than other possible nominees make him<br />
more palatable to Republicans? Perhaps. Should<br />
Republican senators be worried about voter backlash<br />
if they refuse to give him so much as a hearing?<br />
Yes.<br />
Yet Senate Republicans have said they won’t<br />
go forward with his nomination, or any nomination<br />
from this president, despite Judge Garland’s<br />
qualifications. This affront to the Constitution is<br />
an insult to the other two branches of government<br />
as well as to Judge Garland personally. The<br />
Senate has never told an elected president many<br />
months before the end of his term that it will<br />
not let him exercise one of his most important<br />
powers.<br />
It is particularly notable that many Senate<br />
Republicans are even refusing to hold courtesy<br />
meetings with Judge Garland. In 2005, President<br />
George W. Bush’s nomination of Harriet E. Miers<br />
foundered when senators who met her privately<br />
concluded that she was not up to the job. When<br />
Sonia Sotomayor was nominated four years later,<br />
she prepared exhaustively and was able to speak<br />
privately with almost 90 senators. Perhaps partly<br />
as a result, her confirmation hearings were relatively<br />
uneventful.<br />
Judge Garland has already begun scheduling<br />
these courtesy meetings, and the White House<br />
has set up a nonprofit organization to raise money<br />
and develop advertising to push for Judge<br />
Garland’s confirmation. The Senate confirmed<br />
Justice Sotomayor in less than three months. By<br />
that standard, Judge Garland should be confirmed<br />
and sworn in by Memorial Day.<br />
For the first time in decades, the balance of<br />
the court is in a position to shift. That happens<br />
from time to time in our democracy. Judge Garland<br />
should be confirmed quickly and easily. At<br />
a minimum, this exquisitely qualified and widely<br />
admired jurist deserves a fair hearing and<br />
a vote. If the Senate Republicans refuse to grant<br />
him that, they should not just worry about their<br />
seats, they should hang their heads.<br />
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