Garlanding the Bench: Obama’s Supreme Court Nominee vs. The Senate

On Wednesday March 16, 2016, Barack Obama named Judge Merrick Garland to the Supreme Court of the United States of America (SCOTUS). The nomination came after a month of nail biting by Democrats and whining and begging by Republicans who were both expecting the nomination process to be a political fist fight between the parties.

Journalists and self-proclaimed legal experts – myself included – threw out names left and right trying to predict who would be chosen to fill the late conservative Justice Antonin Scalia’s seat. Republican candidate and known racist misogynist Donald Trump begged the mostly Republican Senate to “delay, delay, delay,” in an attempt to make sure Obama wouldn’t pick a liberal judge to fill the vacancy. Everyone was expecting Obama to choose a liberal minded justice from a visible minority.

President Obama surprised us all.

He chose to nominate Judge Merrick Garland, Chief Judge of the DC Circuit Court of Appeals.

From a superficial perspective, Garland is everything even the most backward uneducated racist Republican could hope for. He’s visibly white, male, and he’s old – sixty-three years old to be exact. He’s got silver hair, glasses, and in an age where business attire is becoming more casual, he wears a suit and tie and looks comfortable and polished in both.

Politically, he should be a Republican’s dream, because he’s not that liberal. Most sources on Garland identify him as a moderate, an old-school idealist who dropped a very lucrative career with Arnold & Porter, one of the most respected law firms in the US, to become a public prosecutor. When asked why he did it, Garland said that as a prosecutor you don’t have to take every case; you make your best judgment and “only go forward if you believe the defendant is guilty.”

Garland’s CV is nothing short of impressive.

He worked for the Justice Department during the Carter Administration and after a brief stint in private practice, returned to the Department at age forty as a top official in the Criminal Division of the Clinton Administration. He eventually became second in command to the Deputy Attorney General as a key member of Janet Reno’s team.

He’s got tons of experience in anti-terrorism and was the chief investigator in the Oklahoma City bombing case. He has a history of breaking with liberal judges and fits the career pattern of most of the current justices of the Supreme Court.

If staunch conservative Republicans have any doubts about Garland, they need only look at the fact that Republican Senator Orrin Hatch of Utah – a man who is anti-abortion and voted against adding sexual orientation to the legal definition of hate crimes – once called Judge Garland “a fine man.”

In spite of this, Republicans seem determined to keep Judge Garland off the Supreme Court. They are currently refusing to confirm the nomination, prompting the Obama Administration to create the social media hashtag #DoYourJob.

The reason for the block may surprise you.

It’s not because Garland is Jewish. Even the staunchest racists tend to trust Jewish lawyers and judges.

It’s not just because Obama likes him. Despite what the media will have us believe, Republicans and Democrats can be friends and even agree on something once in a while.

It’s not just because the President of Planned Parenthood Cecile Richards said Judge Garland seems like a “responsible and qualified nominee.”

The most likely reason Republicans are shunning Garland is a judicial decision he published last July regarding a federal ban on federal contractors making federal campaign contributions. In Wendy E. Wagner et al v. The Federal Election Commission, Judge Garland maintained the ban and refused the appeal, which had been argued on First Amendment grounds and on the basis of equality rights.

The First Amendment of the US Constitution guarantees freedom of speech, religion, and the press. In the opening paragraph of the decision, Judge Garland stated that the concerns that prompted the ban – concerns regarding corruption – “remain as important today as when the statute was enacted.”

This undoubtedly hit a nerve with Republicans who rely on contributions from a variety of sources – many with vested interests in policy-making – to fund expensive political campaigns. The nerve is especially raw in this circus the US calls an election year.

The only Republican presidential candidate to show any pragmatism about the nomination is John Kasich, the current governor of Ohio. He criticized the Republican Senate’s arbitrary block of Judge Garland, saying that the Senate should at least meet the guy before deciding one way or the other. Kasich even went insofar as to say that he might name Garland to SCOTUS himself if elected president, a statement he later withdrew undoubtedly after receiving a barrage of criticism from fellow Republicans for refusing to tow the party line.

Judge Garland is liked by just about everyone in Congress and the legal community, and those who don’t like him at the very least respect him. He’s everything a realistic Republican could want: white, male, not too young, not too liberal, and tough on crime and terrorism.

So what’s the holdup? It’s time the American people nag their Senators into doing what they are constitutionally mandated to do.

Their JOBS.

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