“SCOTUS” – Nominating the new Justice
Michael Warren Davies calls for statesmanship
The theory in vogue with conservative pundits right now is that Barack Obama doesn’t even want the Republican-controlled House to confirm Merrick Garland’s nomination to the Supreme Court. The President is bluffing, they say. By nominating a moderate judge with full knowledge that Republicans will block him, he’s leaving the seat available for Hillary Clinton to appoint a more progressive judge; in the meantime, Democratic senators like Chuck Schumer can tether the GOP leadership to Donald Trump and his “extremism”.
Republicans certainly do look a bit foolish for not even giving Mr. Garland a hearing, as they’re obliged to do by the Constitution. And why not? Sure, their position that an appointment so close to a presidential nomination should be deferred, giving the American people a chance to weigh in on the decision, is an honorable one. But it’s difficult for them to mourn Antonin Scalia, the great originalist, while refusing to do the bare minimum of their constitutional duty.
Besides the pressure of duty (as if that weren’t enough), some House Republicans are urging their leadership to seriously reconsider Mr. Obama’s nomination. One must assume they believe their own rhetoric about the unviability of a Trump candidacy in the general election, should he be the Republican nominee. That means there’s a strong chance that the “people’s choice” would be a Democrat, and they’d be obliged to confirm their (inevitably far more liberal) Supreme Court nominee. On the other hand, if Mr. Trump is the nominee, they must also believe their own claims that he’s neither conservative nor competent enough to appoint an adequate successor to the late Justice Scalia. Barring a major surge by Ted Cruz in the GOP primary and a victory in the general election, this may be the most conservative and qualified nominee we can hope for… from the Republican leadership’s point of view, of course.
But there’s another reason for Republicans to consider giving Mr. Garland a hearing – and a fair hearing at that, which means they seriously consider confirming his nomination. That’s the tremendous victory it would deliver to America’s political culture. Granted, it might be the least significant reason on the table, but nonetheless it’s well worth discussing.
Not even the most committed Trump or Sanders supporter would say the divisive atmosphere their candidate’s insurgent campaign has sown is a positive. At most, they’d argue that it’s a necessary evil. The “establishments” of both parties has neglected their voting base for so long that any anger given voice by Messrs. Trump and Sanders are, ultimately, on the establishments’ heads.
While that may be true, it also seems eminently clear that the miasma coming from this election season is suffocating. Not only has the partisan divide never been deeper, but both the Republican and Democratic parties are coming apart at the seams, with the pro- and anti-status quo factions in each threatening to suicide-bomb their own vehicle if it means denying the other victory. This could have a happy outcome: there’s been widespread calls for a third or even fourth major party to emerge and represent the vast array of opinions in the United States. If Messrs. Trump and Sanders are serious about running as independents in the event they don’t win their respective primaries, the result may be just that.
But the riot at Mr. Trump’s Chicago rally suggests there are stakes far higher than simply maintaining the unity of the two major parties. US politics – once the sphere of politicians, the media, and a few lay enthusiasts – is now becoming a topic of popular concern unlike anything we’ve seen in recent decades. That, too, is good news. The bad news is that the deep divisions forming in the political scene are now spilling over into real life. The damages that could result if partisan animosities become interpersonal is unfathomable.
By at least sitting down with Mr. Garland and allowing his merits to be debated on the floor, Republican and Democratic leaders could send a strong signal to their respective bases: rhetoric is rhetoric, but civil service, at bottom, must be civil. That wouldn’t even require Republicans to confirm Mr. Obama’s nominee, though it would certainly demand proving to the President that they give Mr. Garland a fair hearing.
If giving such an impression isn’t impossible at this stage, it may simply be deemed a waste of time – if so, no matter. There was very little you and I could do to alter the course of events at any stage: the Republican leadership’s decision to oppose any Obama nominee was made immediately and irrevocably after Justice Scalia’s death. But taking practical considerations into effect, too, Republicans might offer Democrats a truce, and go forward – however they do go forward – bearing in mind the great service they could render their country by fostering a spirit of bipartisan equanimity. That service is sorely needed as never before.
Michael Warren Davies is the Literary Editor of Quarterly Review