One of the biggest questions in Washington right now is whether Merrick Garland, the federal judge nominated by President Obama for the Supreme Court, will get a hearing.
Senate Majority Leader Mitch McConnell staked out his position just hours after the February death of Justice Antonin Scalia: No. The Senate would not hear any nominee from Obama.
But the president nominated a centrist federal judge in good standing among both major political parties, which has increased the political pressure on Senate Republicans to offer him a hearing. At the same time, 184 lower-court positions remain unfilled as McConnell’s Senate stalls votes on Obama nominees.
The national debate over Garland and the meaning of the Constitution’s “advise and consent” clause arrived at the Louisville Forum today.
Democratic Kentucky Sen. Morgan McGarvey and attorney Richard Dawahare argued the Senate should consider Garland. On the other side, University of Louisville law professor Russell Weaver and McConnell field representative Andrew Condia argued the Senate was at liberty to withhold any consideration.
Here’s what the Constitution has to say about the president’s and Senate’s roles in the nomination process:
“…the [the President] 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…”
And are the main points from the Louisville Forum debate:
Richard Dawahare opened, arguing the debate had been inaccurately framed:
“They actually stated the outlier position: Should the Senate consider and confirm Merrick Garland? The precedent has been that in the president’s last term, the Senate has always confirmed the choice, the nominee. That’s the position. So, the question should have been, ‘Should the McConnell-led Senate ignore history, ignore the Constitution and refuse to consider this fine nominee?’”
Dawahare held that precedent obligates the Senate to consider a nominee and make a decision blind to ideology, and that the only question ought to be whether the nominee is qualified. He went on to mention that Republicans like Senate President pro tempore Orrin Hatch, prior to the vacancy, had spoken very favorably of Merrick Garland’s qualifications and his moderate decisions as a judge. He claimed there was no good reason to deny Merrick Garland a hearing.
Russ Weaver disagreed, saying there is no Constitutional obligation to consider a nominee. He also said there are many examples of nominees going without a hearing or subsequent confirmation.
“We have 25 nominees who never received an up or down vote in the Senate. We have 11 or 12 nominees who never got out of the judiciary committee. There were some who never had hearings whatsoever.
“One of the things we’ve seen in recent decades is that the Supreme Court is rapidly becoming a policymaker in the United States… It can do that, and has done that, but if it’s going to make policy, it’s quite legitimate for the Senate to weigh in in terms of saying who they want to have on the court… This is the only point at which the government has a significant level of say about who we put on the court. So I think given the fact that the court is increasingly making policy decisions, it’s quite appropriate to do what the Senate has historically done, which is to look at their policy positions.”
Morgan McGarvey responded:
“This is nothing more than a political stunt by the Republican majority to drive their base to the polls in November. That’s what this is about.”
McGarvey agreed with Weaver that the Senate is under no constitutional obligation to consider a nominee. He disagreed on what precedence dictates, however.
McGarvey said since 1955, all nominees have received a hearing unless they were withdrawn by the president himself. The average time from nomination to hearing since 1967 has been 50 days.
By refusing to uphold the last 60 years of standard practice in at least holding a hearing, McGarvey said the GOP is setting a dangerous new precedent. McGarvey did not insist that Garland be confirmed, only that the Senate consider him.
“At what point is it too arbitrary? When there’s two years left in a President’s term? Three years?”
Andrew Condia spoke as the representative of McConnell. He attempted to explain McConnell’s decision not to consider Obama’s nominees:
“Well, the Senate is doing the job it was elected to do in 2014, and that is to serve as a check on President Obama and the executive branch. If the American people want the Senate to change the ideological tilt of the court for an entire generation, then I can only imagine that we will see a President Clinton or a President Sanders in January 2017, and perhaps a Democratic Senate. But the Senate has no requirement to be a rubber stamp for the president.”
McGarvey briefly responded:
“Only a third of the Senate is up for a vote every year. Seven of the seats taken back [in the 2014 election] were in states Mitt Romney won. The 5 million more people that voted for President Obama in 2012 actually had no voice in this process.”