The lesson of Merrick Garland’s nomination? Make the Supreme Court less important.
Simply sharing breakfast has become a matter of significant political compromise. On the morning of April 12, Senator Charles Grassley, chair of the Senate Judiciary Committee, met with Judge Merrick Garland, President Obama’s nominee for the Supreme Court, in the Senate dining room. In the absence of any substantive news, journalists were reduced to reporting that the senator ate oatmeal while the judge had eggs and toast.
Senator Grassley was trying to find a path between minimal politeness to a presidential nominee and the Senate Republicans’ steadfast refusal to hold hearings. They maintain that the nomination should wait on the results of the election, though how they would respond at that point to a Democratic president’s nominee remains unclear. While their argument has no constitutional merit—the president has a clear duty to nominate and the Senate to “advise and consent” or refuse a nominee—it is an entirely predictable response to the contemporary political stakes. In this situation, Democratic calls for the Senate just to “do its job,” while rhetorically attractive, fail to address the real problem.
One of the underlying sources of tension is that fundamental questions of social policy are increasingly referred to the court for adjudication as constitutional issues. Sometimes this approach is a shortcut around the slow process of legislative change; at other times it is a relief valve for an obstructionist and dysfunctional legislature. In sum, it has produced a situation where the main political purchase American voters currently have on fundamental policy questions like abortion, gun control, religious liberty and the nature of marriage is their votes for presidential and Senate candidates and their hopes that the Supreme Court nomination roulette wheel will stop on the right space.
For almost 30 years, since Democrats in the Senate defeated Robert Bork’s nomination on ideological grounds—an unprecedented move—the court has remained in fragile balance on these major questions. It has been almost 25 years since a president has had an opportunity to shift the ideological balance of the court significantly, as the first President Bush did by replacing Thurgood Marshall with Clarence Thomas. Since then, court nominations have provided new justices who maintained the same stalemate on the fundamental policy questions that are increasingly decided by constitutional interpretation rather than legislative action.
Now the roulette wheel has stopped in a rare position, offering a Democratic president the chance to replace a significant justice. President Obama has shown admirable restraint in his nomination. Though he leans left, Judge Garland is much closer to the center of the ideological spectrum than the man he would replace and, at 63, is 13 years older and closer to eventual retirement than Justice Scalia was at his nomination.
For Senate Republicans, even this restraint is not enough; their position is understandable even if their motivations are not always laudable. Responding to the fight over Robert Bork’s nomination in 1987, the editors of America admitted that the nominee’s expected position on the constitutionality of abortion rights was an important consideration, arguing that “it would be silly to maintain that politics or ideology should have nothing to do” with such a decision. Further, they predicted that “those now friendly to the Bork nomination might well be questioning the nomination of some other candidate hereafter, and legitimately so.” While we take no satisfaction in pointing it out, we have reached that point.
That recognition should also move Senate Republicans to hold hearings on the nomination. If they believe, as is quite reasonable, that approving this nominee would result in unacceptable outcomes, resolving fundamental questions of social policy in the wrong direction, quite likely for 20 years or more, then they should vote to reject Judge Garland on those grounds. Both they and the Senate Democrats should abandon the pretense of a neutral evaluation of a nominee’s judicial temperament or qualifications and admit that this nomination is the last available lever on policy issues that cannot be resolved elsewhere. Justice Scalia cautioned about this situation in his 1992 dissent in Planned Parenthood v. Casey, writing “if our Constitution has somehow accidentally committed [value judgments] to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.”
Perhaps publicly voicing this unwelcome truth would inspire more political conversation about ways to address the deeper issue. That discussion should include possible reforms to the length of terms and nomination processes for the Supreme Court. Even more important, it should inspire legislators to work for achievable compromise on the most important questions, even if it requires the slow, difficult and uncertain process of arguing over constitutional amendments.