Nominating Merrick Garland may have been the biggest mistake President Obama ever made.
Christmas came in June this year for Republican followers of the Supreme Court, and let’s be honest, the Supreme Court is probably the primary reason that most Republican voters continue to vote Republican. The Good Lord knows it’s not because we ever expect our congressmen to do much of anything! But the Supreme Court still matters, perhaps too much, but that’s how it is, and this week’s three alarmingly close 5-4 decisions — that pro-lifers cannot be forced to recommend abortions, unions cannot forcibly steal money from its members, and the government still has the same power to decide who enters the country as it did during the Obama Administration — was like having Christmas, Hanukkah, and a birthday all at the same time. And seeing the Left lose their collective you-know-what was at least as satisfying, if not more so, than the Court decisions themselves. Nobody can do histrionic meltdowns like the Left.
And that was before we received the glorious news that Justice Anthony Kennedy is retiring, allowing President Trump plenty of time to appoint his successor before the November elections.
Predictably, the Left is screaming “unfair” because, well, everything is “unfair” to the Left, and screaming is their only known form of communication, so we are reminded at high volume, and even higher pitch, that it was especially “unfair” (read: “an exercise of democracy”) that the Republican-controlled Senate “stole” President Obama’s right to nominate Judge Merrick Garland to the Supreme Court by not even giving the nomination a vote.
Let us disabuse ourselves once and for all of that nonsense.
The Constitution provides that the President may only appoint a federal judge with the “advice and consent” of the Senate. The Senate may withhold its consent any number of ways, including by simply not having a vote. It is not the responsibility of the Senate to give consent, it is the responsibility of the President to get consent.
Nevertheless, when Justice Antonin Scalia, the most conservative member of the Supreme Court, unexpectedly died in the last year of the Obama presidency, the President nominated Judge Garland who, by all accounts, is a garden-variety liberal judge, and was a sure bet to be rejected by the Republicans in the Senate. Had President Obama had his way, we would today be living in a country where the government could force you to say things you do not believe, and force you to give away your money to private special interests that you do not support. Religious liberty, freedom of speech, the Second Amendment, and even national sovereignty, would all be in peril.
Knowing how unpalatable that would be to Republicans, who at the time held a 54-46 majority in the Senate, President Obama made no effort to solicit their advice or consent. It should have therefore surprised nobody when the 11 Republican members of the 21-member Senate Judiciary Committee signed a letter advising that they would not vote to confirm Garland (though, admittedly, this was uncharacteristically vertebrate behavior for Republicans). And since a majority of that Committee is needed to confirm nominees before the matter can be presented to the full Senate for confirmation, a formal vote was pointless since it would have failed. Even if it hadn’t, there can be no serious disagreement that a vote in the full Senate, where the Republican majority was even greater, would have ultimately rejected the nomination. The Garland nomination was dead on arrival.
This nomination could not have been “stolen,” because it never belonged to the President in the first place. It is rather curious that we think of federal court nominations as exclusively, or even primarily the province of the President. If anything, since the nominee has to satisfy the Senate, it is really the Senate which effectively appoints federal judges. It is their responsibility to advise the President on which nominees they would consent to, and it’s the President’s job to get their consent.
This was not a subversion of democracy, this is how democracy works. You need support to do things. This was not a constitutional crisis, it was the Constitution working to perfection, separating the powers, requiring a consensus, and leaving the ultimate decision to the representatives of the states. The Garland nomination failed because after seven years of the Obama presidency, the American people time and again went to the polls and elected a Senate with a strong enough Republican majority to rebuke the President’s heavy-handed liberal agenda, and prevent him from appointing the Merrick Garlands of the world to the nation’s highest court.
And once President Obama knew the Republicans would not consent to the Garland nomination, he could have withdrawn it, and worked with the Senate to find a nominee acceptable to the majority of them, as required. Instead, President Obama was content to turn the vacant seat into an election issue, because he thought his party would capitalize on it. Surely the American people would run to the polls to rectify this injustice, this unfairness, this stolen seat! Well, that strategy backfired spectacularly, and instead congealed the fractured the Republican Party after a bitter primary, arguably doing more than anything else to solidify support around, and ultimately elect Donald Trump.
It’s strange that so few people, in trying to explain the 2016 result, actually talk to Republican voters. If they did, they’d find that even those who detested Donald Trump, detested even more the thought of a liberal Supreme Court.
It’s conjecture, but had President Obama been willing to placate Republicans over the Scalia seat and actually filled it, so that it would not have become an election issue, perhaps we would have a President Hillary Clinton today. But President Obama could never reduce himself to getting congressional consent for much of anything, whether it was a war waged in Libya, or a climate deal that would have cost us $250 billion and not reduced global temperatures, or the Iran nuclear deal, or any number of trade deals. With the exception of Obamacare, which was passed when Democrats had a super-majority in both houses of Congress, the rest of the Obama legacy was built on a foundation of sand in the form of executive orders, administrative decisions, and un-ratified treaties, and now his supporters complain and kick and scream as the first wave to roll in washes it all away.
Oh well.
