The National Education Association, along with a host of other groups, wants the U.S. Senate to hold hearings and a vote on the nomination of Judge Merrick Garland to the U.S. Supreme Court. It may surprise you to know that I agree with them. It’s not like these guys are working on simplifying the tax code and can’t be disturbed. You would think they would be clamoring for the free TV time.
The campaign for hearings seems to be based on the notion that Senate Republicans will not confirm Judge Garland, despite his qualifications, and the American voters will punish the GOP at the polls in November for rejecting a nominee purely on ideological grounds. That’s where the strategy goes awry. I recently came across this defense of the Senate’s prerogative to do just that, and public support for the position:
Unlike executive branch appointees, judges do not serve at the pleasure of the President; they are appointed for life. Under the Constitution, the Senate shares equally with the President the power to determine who is to serve in the federal judiciary. Pursuant to its right of “advice and consent,” the Senate can reject any judicial nominee by a simple majority vote.
Historically, the Senate has done more than merely inquire whether the nominee is a fool or a crook; it has rejected a number of nominees because of their rigid ideology. Indeed, in the history of the Supreme Court, almost 20 percent of the nominees have been rejected by the Senate or have withdrawn from consideration under fire, most for ideological reasons. And the public supports the Senate’s exercise of that prerogative. A recent New York Times/CBS News poll concluded that 62 percent of the American public believes that senators should pay “a lot” of attention to a Supreme Court nominee’s “positions on major constitutional issues” in considering whether to confirm.
Especially where, as here, the President nominates a Justice for blatantly ideological reasons, the Senate is constitutionally bound to closely examine that ideology.
Those paragraphs are from a document prepared by NEA’s general counsel dated August 1987 and titled, “Background Information on the Nomination of Robert Bork to the U.S. Supreme Court.” It bears mentioning that the 1987 NEA Representative Assembly “voted overwhelmingly to oppose the nomination” of Judge Bork three days after it was made, and this document was prepared after that vote.
Republicans could do worse than Garland, but I’m inclined to agree with Eric Posner – it’s not how liberal a Supreme Court justice is, but whether he votes along with the other liberal Supreme Court justices. This Garland will almost certainly do. GOP senators are under no obligation to make that happen.
Still, Garland is a nominee. He should get a hearing and a vote. If you don’t want him to serve, vote him down. The idea that there will be some great uprising among the electorate because of it is silly.