sábado, 19 de marzo de 2016

How is the Merrick Garland nomination going to play out?

On Wednesday morning, President Obama announced the nomination of Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, Merrick Garland, to cover the vacancy created by the sudden death, last month, of Justice Antonin Scalia. 


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Mr. Garland, 63, has been a federal judge for 19 years and Chief Judge for the last three years. He is the nominee with most federal judicial experience in history. He is absolutely qualified for a position at the Supreme Court. This is under no serious debate.

However, the problem he faces is simple: Justice Scalia was member of a 5-4 conservative (read: Republican) majority in the Supreme Court that has existed roughly since 1969. The nomination by President Obama of any person to fill his position creates the potential of a liberal majority for the first time in nearly fifty years.

Currently, there is a 54-46 current Republican majority in the Senate. Mitch McConnell, the Senate majority leader, stated just hours after Justice Scalia died that:

“The American people‎ should have a voice in the selection of their next Supreme Court Justice," he said in a statement. "Therefore, this vacancy should not be filled until we have a new President.”

That statement is blatantly absurd. Article II, section 2, paragraph 2 of the U.S. constitution clearly states that:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Constitution clearly vests on the President (who, by the way, is President till January 20, 2017, 10 months from now) the power to make a nomination, and compels the Senate to provide "advice and consent" on said nomination. We can argue, in particular, what the word "consent" means, but it seems to anyone who is not blatanly partisan, that it means:

1) To provide hearings for the nominee (something that every nominee has received in the last 100 years)

2) To provide an up or down vote for the nominee (that is more debatable, but it could imply either an up or down vote like Robert Bork received on 1987, or at least a cloture vote like Abe Fortas suffered in 1968).

What "advice and consent" clearly does not mean is to do nothing and wait for 10 months till the next President gets elected.

What we are facing is, therefore, an exercise of pure, raw power from the Republican Senate majority, based on a simple premise: we are blocking any decision on this nominee until a Republican President is elected and he can make a different, conservative nomination.

This is nothing but an extension of the "burnt land" politics that the majority of Republicans have practiced since President Obama was elected, but it really disrupts the American political system to a rarely seen degree. It seems strange that a party that calls itself "conservative" would disrupt traditions in the U.S. Senate in such a brazen fashion, but the Republican Party, as shown by the Donald Trump nomination, seems to be on a very profound moral crisis. Ron Fournier, who is always criticised because of his "both sides do it" attitude, blames squarely on the GOP the present nomination crisis:



(Incidentally, one of the main defences of Republicans has been that Democrats would do the same if the situation was reversed. The 1987 retirement of Justice Lewis Powell, with a 55-45 Democratic Senate majority, and its substitution by Justice Anthony Kennedy, shows that such "defence" is a hollow one: Democrats put up a big fight against Robert Bork, who they deemed "too extreme" -by the way, he was- but confirmed Anthony Kennedy 97-0. Even worse, Clarence Thomas, who faced a 57-43 Democratic majority, and was accused of sexual harassment, received hearings, an up and down vote, and was confirmed. Both sides are not equal).

To a certain extent, President Obama has called the Republicans bluff, by nominating not only an absolutely qualified nominee, but the most moderate liberal he could find. He has not played identity politics with the nomination (a constant and mostly unfounded criticism by Republicans against the President): he has not appointed a young Latino, Black, or LGBT man or woman, but an aged, bland white Jew, with such bipartisan support that Orrin Hatch, the nr. 2 Republican member on the Senate Judiciary Committee, has been praising and pushing him as a candidate for years.

(Actually, some Democrats have expressed their disappointment about this nomination, but fortunately, from what I have been reading, they are in a clear minority position, since the Democratic Party is still a functioning, thinking entity, based on reality, and the reality is that Republicans hold a majority in the Senate, and the President has made a nomination that should be acceptable to them).

So now the Republicans, as they have usually found themselves on the last seven years, find themselves in an untenable position: according to polling, a majority of Americans want the Senate to consider an Obama nominee to the Supreme Court. But what is even worse: because of the high probability of a Donald Trump (or lesser probability of a Ted Cruz) nomination for President, it seems painfully predictable that the next President will be Hillary Clinton and the next Senate will be a Democratic majority one.

That is why some Republicans (Orrin Hatch, for example) are already "open" to consider hearings for Mr. Garland on the "lame-duck" Senate session after the presidential election (November-December), which is such a hypocritical statement that it simply blows one's mind. You cannot argue that the American people should have a say on the next nominee to the Supreme Court, and then, once they have chosen a new Democratic President and a Democratic Senate, disregard your previous thought and say "Ok, we will just hold hearings and vote for the nominee that was made six months ago".

Al Franken, the U.S. Senator for Minnesota, summarised the contradictions of the Republican position on a meeting of the Senate Judiciary Committee this week. It's a long video, but it's worth watching in full:



(Franken, by the way, has been a very nice surprise: a former comedian for Saturday Night Live, he has been a hard-working, extremely serious Senator, which was not necessarily what would be expected).

So, to sum up, and to answer the question which is the title of this article, how is the Merrick Garland nomination going to play out?:

1) Republican Senators will NOT allow a hearing until the election, hoping against all hope that Trump or Cruz beat Hillary Clinton.

2) However, since Hillary Clinton will be elected President and a new Democratic majority Senate will be chosen, Republicans will push the nomination during the lame-duck season, since Hillary would push for a more liberal candidate than Merrick Garland in 2017.

3) Merrick Garland will be confirmed during the lame duck. The end.