Obama Picks Court Nominee Once Admired by GOP
President Obama plunged headlong into an epic battle with the Republican-led Senate Wednesday, nominating Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, to succeed the late conservative Justice Antonin Scalia.
Speaking in the White House Rose Garden, Obama denied that politics influenced his month of deliberations or his final choice, even as he braced for an election-year face-off that would not exist without partisan politics.
“Because of Justice Scalia's outsized role on the court and in American law, and the fact that Americans are closely divided on a number of issues before the court, [I know] it is tempting to make this confirmation process simply an extension of our divided politics,” the president said. “But to go down that path would be wrong. It would be a betrayal of our best traditions and a betrayal of the vision of our founding documents,” he said.
Garland is 63, white, and a Harvard Law School graduate. He has spent 18 years on the bench, three as chief judge with the D.C. Circuit, and built a reputation as a meticulous, skilled jurist admired across the partisan spectrum and by senators in both parties. He is of a generation, and at a stage in his career, considered slightly more insulated from permanent damage from a bruising public fight, should Senate Republicans maintain their blockade against his promotion to the high court. But the White House is hoping for confirmation, and betting on pluses either way.
Obama and advocacy groups, many represented in the audience invited to the Rose Garden Wednesday, wager the public will be impressed with Garland’s bipartisan appeal in and out of legal circles, his personal story and his performance in prosecuting Timothy McVeigh following the 1995 bombing of a federal building in Oklahoma City. They believe Garland is a consensus nominee who can erode senators’ insistence that the legislative branch must leave an important judicial seat vacant for a year.
The president and Vice President Biden in recent weeks have reached out to members of the Senate Judiciary Committee, hoping to keep lines of communication open, in some cases by exploiting other matters of shared interest. For example, Biden and Utah Sen. Orrin Hatch, longtime colleagues and friends, toured a cancer center last month in Hatch’s home state. Hatch and his wife were also guests at last week’s glittering White House dinner for Canadian Prime Minister Justin Trudeau. And Judiciary member Sen. Jeff Flake of Arizona will join the president and his delegation aboard Air Force One Sunday for a history-making trip to Cuba, along with other lawmakers.
Valerie Jarrett, a senior adviser to the president, told RealClearPolitics she does not believe Senate Republicans can hold the line against considering Garland’s nomination. During his remarks, Obama referenced Americans’ belief that senators should consider his nominee, and polls conducted since Scalia’s death but before Garland’s nomination found lots of public interest in the court vacancy and majority support that the Senate should act this year.
The president and members of both parties already are raising campaign contributions and working to goose voter turnout in November by championing the stakes for pending cases at the Supreme Court. The progressive pitch for Garland’s confirmation will quickly migrate out of Washington and into states where GOP incumbents are in tough Senate re-election contests. The president’s team worked to tamp down disappointment Wednesday among progressive groups that he bypassed qualified minorities for what may be his last opportunity to mold the nation’s highest court.
Obama previously selected Associate Justices Sonia Sotomayor, the first Latina, confirmed by a 68-31 Senate vote in 2009, and Elena Kagan, confirmed by a vote of 63-37 in 2010. The White House was armed with data Wednesday: Obama has appointed 117 minority judges to date, “more than any president,” said Brian Deese, White House senior adviser.
The unexpected Supreme Court vacancy and the drama during a presidential election year animates candidates from both parties. Hillary Clinton, during a primary victory speech Tuesday night in Florida, told her backers that “together, we have to defend all of our rights – civil rights and voting rights, worker's rights and women's rights, LGBT rights and rights for people with disabilities, and that starts by standing with President Obama when he nominates a justice to the Supreme Court."
White House aides said Obama did not consult Clinton or Sen. Bernie Sanders before selecting Garland.
Sen. Ted Cruz of Texas, running behind Donald Trump in the Republican contest for the White House, attempted to cast Garland as a liberal while painting Trump as a centrist, all in one paragraph he tweeted Wednesday.
“Make no mistake,” Cruz, who is on the Judiciary Committee, wrote in a statement, “if Garland were confirmed, he would side predictably with President Obama on critical issues such as undermining the Second Amendment, legalizing partial-birth abortion, and propping up overreaching bureaucratic agencies like the EPA and the IRS. We cannot afford to lose the Supreme Court for generations to come by nominating or confirming someone that a dealmaker like Donald Trump would support.”
Garland, who grew emotional in the Rose Garden when describing his family and the “gift” of being nominated, is scheduled to meet senators beginning Thursday, and he began calling a list of them immediately. He was to speak with Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, within four hours of Obama’s announcement, and the two men will meet after the Senate returns from a two-week recess that begins on Monday.
White House officials pointed to Senate Republicans who agreed to meet with Garland, arguing their courtesy and interest was evidence that the GOP Senate leadership does not speak for the entire conference. Senators mentioned: Thad Cochran of Mississippi, Kelly Ayotte of New Hampshire, Susan Collins of Maine, Flake, Mark Kirk of Garland’s home state of Illinois, Rob Portman of Ohio, and even arch-conservative James Inhofe of Oklahoma.
The White House rejected suggestions Obama must have a fallback “plan B.” Aides repeated that the Senate has a constitutional responsibility to weigh Garland’s nomination this year.
Obama’s spokesman also pushed back against any proposal for action after the November election and before the president turns the keys over to his successor.
“There is absolutely no reason to wait until the lame duck [period],” White House Press Secretary Josh Earnest said, clarifying that Obama would not withdraw Garland’s nomination. “The president has put forward the person he believes is the best nominee,” he added.
GOP Senators Tout Principle Over the Person
Senate Republican leaders, deploying a strategy of their own, wasted little time in the wake of Garland’s Rose Garden appearance before responding.
Majority Leader Mitch McConnell, during a floor speech minutes after Obama’s remarks, said the Senate’s decision not to act is “about a principle, not a person.”
McConnell spoke with Garland by phone Wednesday, and his spokesman said he would not meet with the nominee, but “wished Judge Garland well.”
The senator in his remarks emphasized what he called the “Biden rule,” shorthand describing a floor speech then-Sen. Joe Biden delivered in 1992 when he chaired the Judiciary Committee. At the time Biden said the Senate should wait to confirm a Supreme Court nominee until after a presidential election, to offer the American people a voice in the process. Biden recently clarified he had been speaking about the prospect of a voluntary Supreme Court vacancy on the eve of presidential nominating conventions.
“It seems clear that President Obama made this nomination not with the intent of seeing the nominee confirmed but in order to politicize it for purposes of the election,” McConnell said.
Obama’s selection of Garland, however, put Republicans on defense. After President Bill Clinton nominated Garland to the circuit court in 1997, a GOP-led Senate confirmed him 76-23, with more than 30 Republicans joining the majority, including seven current senators. Several Republicans still in the chamber have spoken glowingly in the past about Garland.
Hatch, a former Judiciary chairman and the current president pro-tempore of the upper chamber, said in 2010 when Garland was being considered for an opening on the Supreme Court that he would be a “consensus pick” and there was “no question” he would win bipartisan confirmation.
In a statement Wednesday, Hatch said, “I think highly of Judge Garland. But his nomination doesn’t in any way change current circumstances. I remain convinced that the best way for the Senate to do its job is to conduct the confirmation process after this toxic presidential election season is over.”
McConnell and Grassley voted against Garland in 1997. Grassley said there was no need to fill additional seats on the circuit court, calling it a waste of taxpayer money.
“I, like most of my colleagues, can find no fault with the person the president has put forward, but there is the principle of whether or not we need judges,” Grassley said at the time.
Grassley didn’t mention Garland by name in a statement Wednesday, but stuck to his position that the seat should remain vacant until after the election.
“A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics,” he said.
Senate Democrats applauded the decision to nominate Garland and reprised criticisms of Republicans for their vow of inaction. Minority Leader Harry Reid and several members of the Judiciary Committee, including Patrick Leahy of Vermont, Dick Durbin of Illinois, Diane Feinstein of California and Amy Klobuchar of Minnesota, were at the White House for the announcement of Garland’s nomination.
“I am optimistic that cooler heads will prevail, and sensible Republicans will provide Judge Garland with the fair treatment that a man of his stature and qualifications deserves,” Reid said in a statement.
While most GOP senators backed McConnell and Grassley’s position to put off the nomination, vulnerable Republicans facing difficult re-election battles next year are split on the decision.
Portman, who will meet with Garland, reiterated his position that the nomination should wait until after the election, repeating McConnell’s stance that “this is about the principle, not the person.” Illinois Sen. Mark Kirk broke with his party, saying in a statement that he would judge Garland “based on his record and qualifications." Ayotte said she would meet with Garland but noted she still believed the next president should fill the vacancy.
Pennsylvania Sen. Pat Toomey said in a series of tweets that he thought the nomination should wait until after the election, but added, “Should Merrick Garland be nominated again by the next president, I would be happy to carefully consider his nomination.”