The Politicization Of Our Nation's Highest Court

Following President Obama’s announcement that he would nominate U.S. Appeals Court judge Merrick Garland to the U.S. Supreme Court, Senate Majority Leader Mitch McConnell (R-Ky.) spoke from the floor of the U.S. Senate: “The American people may well elect a president who decides to nominate Judge Garland for Senate consideration.”

“Our view is this: Give the people a voice in the filling of this vacancy.”

The Constitution is clear on this matter - Article II, Section 2 reads: the President “shall nominate, and by and with the advice and consent of the Senate … appoint … judges of the Supreme Court.”

This is the exact same article and section of our nation’s founding document that names the President “commander in chief of the Army and Navy of the United States.” Should a President’s duties in this case be infringed upon if, for example, s/he is in the last year of office?



It is doubtful any lawmaker would espouse such views.

The Senate should fulfill its duties prescribed in the Constitution and at least give Merrick Garland a fair hearing. After all, the people have spoken: In 2012, they re-elected President Obama for a second term.

GOP Senators have spoken of judge Garland in a very positive light.

Just last week, Sen. Orrin Hatch (R-UT) told Newsmax he believes Garland to be “a fine man,” adding: “[President Obama] won’t [nominate him] because this appointment is about the election. So, I’m pretty sure he’ll name someone the [liberal Democratic base] wants.” The President has called the bluff.

Further, seven currently sitting senators voted to confirm Garland to the D.C. Circuit Court in 1997. Some, like Sen. Mark Kirk (R-IL), have even said they would be willing to hold hearings and vote on an Obama nominee. Other senators who have elections coming up and rely on Independent voters have made similar calculations.

As the core (establishment) of the Republican party is fighting against the authoritarianism of Trump, they should fall back on what makes the American political system so resilient: a respect for the document that defines the structure of our government and a belief that an active Congress is in the best interest of U.S. citizens.

According to a Washington Post/ABC News poll, 63% of respondents believe the “Senate should hold hearings on Obama’s Supreme Court nominee.” Republicans don’t want to entertain hearings in the fear that constituents might actually approve of judge Garland, considering certain of his moderate opinions.

Justice Merrick Garland accepted his nomination, which is sure to be contentious even if hearings are not held, with grace and poise. Speaking after the President’s announcement, he became emotional when speaking of his wife and daughters.

Just in the few minutes he spoke in the Rose Garden of the White House, one could appreciate the seriousness and sincerity of Judge Garland. A man who would join the court with the most Federal experience of any justice in history, and as the President said, “deserves to be confirmed … and deserves a fair hearing.”

On a more sobering note, SCOTUSblog contributor Lyle Denniston elaborated: “The predicament of the Senate, the White House, Judge Garland and the Supreme Court find themselves in right now looks more and more untidy. Can it be that governing America under its two-century-old Constitution is starting to get out of reach in a deeply polarized nation?”

4 comments about "The Politicization Of Our Nation's Highest Court".
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  1. Steve Schiedermayer from Schiedermayer & Associates, Inc., March 18, 2016 at 2:22 p.m.

    And so Philip - what would Harry Reid do if he were in control of the Senate now? I think you need to be intellectually honest about what would happen if the situation were reversed. What would he do?

  2. Philip Rosenstein from Law360 replied, March 18, 2016 at 2:43 p.m.

    Thanks for the note, Steve. I would assume if the roles were reversed commentators would use similar arguments that I have used in this piece. It's hard to know what Reid would do, but McConnell should at least show a touch of respect for our President's nominee and give him a hearing (even if it's assumed he wouldn't be able to succeed in a confirmation vote with this Senate).

    If he wants to let the people decide - they have, 63% say they want hearings. 

  3. Steve Schiedermayer from Schiedermayer & Associates, Inc., March 18, 2016 at 5:13 p.m.

    Thanks Philip - I'd even go a step further...have hearings and a vote! And it should probably best be law as opposed to tradition. I just find that it's infrequent when commentary on the media's coverage ever involves an assessment of role reversals.

  4. Paula Lynn from Who Else Unlimited, March 18, 2016 at 6:06 p.m.

    Take heart America. Between Cruz, especially sr. who wants to put gays and non believers in camps some place in northern New Hamshire and somewhere along the southern border and other states trying to pass (on some levels they have) the religious liberty for the right to run a business among other arenas where they can turn away black, gay, and people with other religious affiliatiions for their "religious" beliefs, we are up over our heads in trouble. A Judge Garland would probably, if he follows the constitution as is, overrule these actions. Kinniptions. 

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