Waiting for an End to Supreme Court ‘Death Watch’
After more than a month of heated speculation by pundits, President Obama has chosen Merrick Garland, a well-respected but obscure federal judge, to fill the Supreme Court vacancy left by the death last month of Antonin Scalia, the legendary and polarizing conservative firebrand.
In a saner world, Garland’s history of receiving strong support from both Republicans and Democrats would mean that the Senate could proceed with a confirmation hearing and an up-or-down vote on his nomination.
Unfortunately, that’s not likely to happen: Garland seems destined for summary rejection, and what I call the court’s “death watch” will continue — with activists and others worrying that at any moment yet another justice’s death (three are in their late 70s or their 80s) could intensify the partisan fight over the Supreme Court’s future.
As macabre as it may be, the death watch has been underway since at least 2014, when stories began to circulate about possible replacements for the court’s oldest member, Justice Ruth Bader Ginsburg, now 83. I covered that controversy in this column back then, and I have since written other articles on the aging of the other justices and their possible retirements.
This death watch could end if we lived in a more fair-minded nation — one in which the judiciary dispensed its duties with impartiality and equity and in which those duties were respected by us all. In such an imaginary polity, we could breathe a collective deep sigh of relief, confident that the chief executive had fulfilled his responsibilities under Article II, Section 2, of the Constitution to see that our most powerful judicial body is fully staffed.
But, of course, we don’t live in that kind of land. We live instead in a nation divided by race, class, extreme economic inequality and prejudice as well as by issues like climate change and environmental degradation, immigration and xenophobia, campaign finance and voting rights, gun violence, gay marriage and abortion. And as the meteoric rise of the vulgar billionaire demagogue Donald Trump to the status of GOP presidential front-runner signifies, the fractures over such issues are destined to persist and sharpen, perhaps to the breaking point.
We’re still taught in high school and college civics classes that the Supreme Court is somehow above the fray. We’re told that it is, as Alexander Hamilton posited in Federalist Paper No. 78, as “the least dangerous” branch of government because it has “no influence over either the sword or the purse” and because “it may truly be said to have neither FORCE nor WILL, but merely judgment.”
Nothing, however, could be further from the truth. The Supreme Court has been front and center in nearly every transformative political controversy in our nation’s long history.
Sometimes, the court has ruled in favor of democracy and social progress, as in the 1954 landmark Brown v. Board of Education decision, which helped spell the end of legal segregation, and in last year’s 5-4 opinion in Obergefell v. Hodges, which recognized the constitutional right to marriage equality, regardless of sexual orientation or the sex of one’s chosen spouse.
But just as often, the court has sided with the forces of bigotry and power — as in the Dred Scott opinion of 1857, which upheld the institution of chattel slavery and helped precipitate the Civil War; the Bush v. Gore judicial coup d’état that determined the outcome of the 2000 presidential race; and the Citizens United decision of 2010, which calcified the oligarchy’s hold on the electoral process.
A number of questions arise as Garland steps into the fray: What kind of a judge, politically and ideologically, is he? Can he win confirmation? Would his inclusion on the panel appreciably shift the court’s balance of power? Is Garland really the best choice Obama could have made?
There is no doubt that the 63-year-old Garland is eminently qualified to take his place alongside Chief Justice John Roberts and the other seven members of the court. Garland is a graduate of Harvard Law School and currently serves as the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, considered by many legal observers to be the second-most important court in the country. After serving as a deputy assistant attorney general in the Justice Department’s criminal division, Garland was nominated to the appellate bench by President Bill Clinton and was confirmed by the Senate in 1997 with a vote of 76 to 23.
Since his arrival on the D.C. Circuit, Garland’s record has been moderate, and as Tom Goldstein — the well-known appellate lawyer who founded the influential online court-tracker SCOTUSblog.com — explained in Newsweek, he has issued few controversial rulings as a judge.
When it comes to criminal law, Goldstein noted, Garland is a conservative and has rarely voted to overturn the convictions or sentences of defendants. In 2003, for example, he joined a panel opinion (Al-Odah v. United States) denying legal standing to a Guantanamo Bay prison detainee who was seeking habeas corpus relief. On the other hand, Garland is considered left-leaning when it comes to issues involving the Second Amendment and environmental regulation.
Yet even with his decidedly middle-of-the-road résumé, there is little chance that the Republican-controlled Senate will endorse Garland, even if he’s given the courtesy of a formal confirmation hearing — which, according to the latest pronouncements of Senate Majority Leader Mitch McConnell, R-Ky., isn’t going to happen either.
McConnell and his GOP allies have invoked “the Biden rule” to buttress their position that deliberations on Scalia’s successor should be postponed until after the next president takes office in 2017.
The origin of the so-called Biden rule is a 1992 speech by Vice President Joe Biden, who was then a member of the Senate Judiciary Committee. In the speech, Biden declared that to avoid rancor and controversy in an election year, Supreme Court vacancies should not be filled unless the upper chamber is presented with a consensus nominee. Yet the rule is neither a law nor a settled policy.
A total of 21 justices have been appointed during presidential election years. The court’s present swing justice, Anthony Kennedy, was confirmed by the Senate in 1988, the year that George H.W. Bush was elected.
Clearly, what worries McConnell and the right wing is that choosing a moderate to fill the vacant seat once held by a strong conservative would dramatically alter the court’s direction for years to come. Any relative departure from the extreme and often incendiary views of Scalia would be of historic importance.
McConnell’s outlook is shared by right-wing commentators and pundits. In the March 11 online edition of the conservative National Review magazine, court analyst Carrie Severino blasted Garland (who was then mentioned among Obama’s Supreme Court finalists) for being hell-bent on reversing Scalia’s Second Amendment opinion in District of Columbia v. Heller.
Thus, there is practically no chance that Garland’s appointment will end the Supreme Court’s death watch.
From a progressive standpoint, it’s disappointing that Obama settled upon so tepid a choice to supplant Scalia. (In an earlier Truthdig column, I suggested that Elizabeth Warren be tapped to fill the next opening.)
Still, when you consider the fact that Donald Trump has suggested that if elected he would name someone like 7th Circuit Court of Appeals Judge Diane Sykes — whom I termed in a 2013 column “the worst judge in America” — we could do far worse than having Merrick Garland become the 113th justice of the Supreme Court. All things considered, he deserves our support.Wait, before you go…
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