Article II of the United States Constitution states that the president "shall hold his office during the term of four years." It also states that the president "shall, with the advice and consent of the Senate, appoint … judges of the Supreme Court." Article VI declares that all elected officials "shall be bound by oath or affirmation to support this Constitution."
It's all there, right in the document the president and each senator swore an oath before God to support. The president serves for four years. Nothing in the Constitution says, implies, or suggests that the president's duties are abrogated, suspended, stopped, stripped away or limited in the fourth year of his term — or her term, should a woman be elected. Obama's oath of office requires him to nominate a Supreme Court justice. It's that simple: he shall nominate someone to fill the seat that Antonin Scalia's death left open. Last week, Obama kept his oath and sent the name of Judge Merrick Garland to the Senate, to sit on the nation's highest court.
Since everything in Washington is governed not by the people, but by politics, it's instructive to examine President Obama's choice in political terms. Judge Garland is highly qualified and a centrist judge with an unimpeachable history of moderation as a jurist and a finalist for both of the last two nominations. Merrick's record is closest to Reagan appointee Anthony Kennedy, and many of his decisions are more in line with the court's conservatives than its liberal wing. By nominating a centrist with a moderate judicial temperament, Obama should be immune from charges of packing the court with political ideologues.
Garland's standing with Republicans is positive. He received bipartisan support for his appointment to the D.C. Circuit Court of Appeals in 1997. Sen. Orrin Hatch said of him, "Merrick B. Garland is highly qualified to sit on the D.C. circuit. His intelligence and his scholarship cannot be questioned. ... His legal experience is equally impressive. ... I believe he is not only a fine nominee, but is as good as Republicans can expect from this administration. In fact, I would place him at the top of the list."
Republicans have absolutely no basis for opposing Garland, whose record and temperament support confirmation. Obama's political calculus gives Republicans the choice of doing the right thing or kowtowing to their party's right-wing extremists.
Given that choice, why are Senate Republicans shirking their Constitutionally mandated responsibilities? They say they want the people to choose who should make the next Supreme Court appointment. But they already chose in 2012, giving Obama 5 million more votes and a 126 electoral vote victory. The law of the land, which they swore to uphold, says that choice remains in force until Jan. 20, 2017. Led by Mitch McConnell, they cynically claim history supports their position that lame duck presidents don't exercise their power, but at least a half-dozen Supreme Court appointments were made by both Republicans and Democrats in the last year of their terms. Republicans are playing politics with the nation's judicial branch.
Conservative icon George Will wrote "The Republican Party's incoherent response to the Supreme Court vacancy is a partisan reflex in search of a justifying principle. The multiplicity of Republican rationalizations for their refusal to even consider Merrick B. Garland radiates insincerity." He also called their justifications "preposterous" and a "tossed salad of situational ethics."
Their posturing hides their real reasons for stonewalling: terror.
They have surrendered to fear of political reprisal from their extremist wing. Judging by the primary defeats of Eric Cantor and Dick Lugar by Tea Party right wingers, and John Boehner's and Kevin McCarthy's rude treatment in the House, their fears are well-founded. The same factors that destroyed the presidential campaigns of establishment candidates could easily lead to the right wing abandoning the two dozen Republican senators up for re-election. As a Trump or Cruz candidacy would not give them much support, Republican incumbents don't want to weaken their standing with their party's uber-conservative activists.
NPR political analyst Nina Totenberg reported that Republicans offered, if President Obama would nominate Garland, they'd confirm him after the election, should the Democrats win. If Garland's qualifications would earn him confirmation in November, they are good enough to confirm him in April. But to do so would require an act of political courage.
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Mitch Edelman writes from Finksburg. Email him at email@example.com.