On March 16, 2016, President Obama fulfilled the first stage of his obligation under the U.S. Constitution: to fill the Supreme Court vacancy. He nominated the current chief judge of the federal D.C. circuit court, Merrick Garland. Garland was born in Illinois and received his undergraduate and law degrees from Harvard University. He clerked for Supreme Court Justice William Brennan, worked in private practice and served as a federal prosecutor for many years. Most notably he oversaw the Unabomber and Oklahoma City bombing cases.
Garland is no stranger to the political aspects of judicial confirmation. His first nomination to the federal bench, in 1995, was not voted on due to election-year politicking and disputes regarding the alleged overstaffing of the D.C. circuit court. Nevertheless, he received bipartisan support when re-nominated by President Bill Clinton. Garland is considered a judicial moderate who, absent the election year timing of his nomination, most likely would be confirmed with little controversy. As conservative Senator Orrin Hatch stated in 1997, “I do not believe there is anything in Mr. Garland's record to indicate that, if confirmed, he could amount to an activist judge or might ultimately be an activist judge.” Senator Hatch was right; Judge Garland’s decisions are well-reasoned and constrained. Just three days ago, Sen. Hatch indicated Garland is the type of judge Obama should, but would not, nominate.
The ball is now in the court of the Senate Judiciary Committee, chaired by Senator Chuck Grassley of Iowa, to schedule confirmation hearings on Judge Garland’s qualifications for the position. Senator Grassley issued a press release immediately after the nomination, but stopped short of completely rejecting the possibility of confirmation hearings. Instead he stated, “A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests.” He then invoked what has been called “the Biden rule,” relying on a 1992 statement made then-Senator Joe Biden regarding a hypothetical Supreme Court vacancy made in mid or late summer of a presidential election year. Biden opined that in such a situation the president “should not name a nominee until after the November election is completed.” Justice Scalia, it should be noted, died in February.
Should the Senate refuse to act, the president is empowered under the constitution to make an interim appointment when the Senate is in recess. The Senate can avoid being in recess, however, by scheduling “pro forma” sessions even when Senators are not in Washington and no work is conducted.