Ethics Verdict: The Republicans Should Vote On (And Approve) Judge Merrick Garland

Merrick Garland

For Senate Republicans, holding hearings on President Obama’s qualified and moderate nomination for the Supreme Court is both the ethical course and the politically smart course. It is also in the best interests of the nation.

In fact, the Byzantine political maneuverings by the President and the Republican leadership, by turns petty and ingenious, have handed Republicans a political chess victory, if only they are smart enough, responsible enough, and patriotic enough to grab it. Naturally, they aren’t.

It is infuriating, and all citizens should be infuriated.

A brief review of how we got to this point of looming GOP disgrace is in order:

  • Justice Scalia died, removing a towering conservative force from the Court. This meant that almost any replacement, and definitely one named by Obama, would make the Supreme Court more liberal than it has been in many years.
  • Seizing on the opportunity to make the election a referendum on the composition of the Court (which is was going to be anyway), Mich McConnell announced that no nominee named by Obama, an outgoing POTUS less than a year from leaving office, would be considered by the Senate.
  • Democrats and their allies in the punditry predictably pronounced this to be a breach of Senate duty. Embarrassingly, records surfaced of  Joe Biden asserting the same basic principle that McConnell was arguing for, when Bush was the President. Biden, I must duly note, is an idiot, but he’s still the current Vice President. Then again, all Biden has to do is say now, “I was wrong.” As he frequently is.
  • Though many predicted that Obama would name a transsexual, disabled black Jewish Latino judge with Socialist leanings to maximize the opportunity to politicize the process, he did the opposite. He named a qualified jurist.
  • The judge he named, Merrick Garland, is a white, veteran 63-year-old judge with a distinguished record, nothing flamboyant or controversial, who is as close to a non-ideological, non-partisan moderate as any Democratic President is likely to appoint from now until the stars turn cold.

Now, if Senate Republicans were interested in doing what is in the best interests of the nation—that is,  filling the Supreme Court vacancy as soon as possible, giving proper deference to a responsible and reasonable nomination by the President, avoiding a nasty and divisive partisan fight, and ensuring that the next Supreme Court Justice won’t be an intractable leftist firebrand determined to gut the Constitution or another “wise Latina” mediocrity who will pollute the record with touchy-feely ramblings—they would leap on this opportunity and unanimously confirm Garland, saying publicly that they reconsidered McConnell’s declaration in the interest of restoring the integrity of the nomination process and returning to the time before Democrats politicized the process beyond reason in the Bork hearings, giving the President his choice, regardless of philosophical bent, when the nominee is qualified, dignified, experienced and trustworthy. like Judge Garland Privately, of course, they would think, “Hot DAMN! This worked out great! We maneuvered Obama into a moderate nomination who is already in his sixties! This is better than we could have hoped for, and certainly better than anyone we’re likely to get from President Hillary or President Trump, who might nominate Ann Coulter or Putin!”

Unfortunately, they are not interested in doing what is best for the country, best for the Court, or what will begin to heal the partisan divide and model responsible bi-partisan governance. Why? We are told that they won’t do this because their hard right base—you know, morons—will be angry at them for not holding out for confirming another Scalia, the chances of which are somewhere between the odds of Scalia returning from the dead and the odds of Sea Biscuit winning the Kentucky Derby in 2016.

You know, there’s a few words that come to mind when a political party refuses to do what it knows is responsible, smart, and right because angry, irrational, none-too-swift party members want them to be stubborn, viciously partisan and self-destructive instead, but I can’t write them here because I’d have to ban myself.

Now, do Democrats have standing to accuse Republicans of being unethical by refusing to vote on Obama’s gift nominee? No! Volokh Consipiracy contributor and law professor David Bernstein knocked that contention out of the park thusly…

[T]he Obama administration, with its aggressive assertions of executive power (some of which, I should note, I would support on policy grounds), is in a poor position to appeal to constitutional norms. The administration showed a severe lack of respect for constitutional norms when, for example, contrary to decades of precedent that the Justice Department will defend any federal law with a plausible defense, it refused to defend the Defense of Marriage Act before the Supreme Court (after defending it a year earlier in the court of appeals!); when the administration forced Common Core standards on local education without anything resembling explicit congressional approval or even debate, based on an aggressive reading of vague existing law; when the administration unilaterally changed immigration policy via executive order, after Congress failed to pass legislation that would have accomplished similar ends; when the president has simply refused to enforce provisions of Obamacare that proved politically problematic; and, for that matter, when the president advocated for and signed perhaps the only major piece of American social legislation (Obamacare) that not only failed to win widespread bipartisan support, but also attracted not a single vote in either house of Congress from the other party. More generally, President Obama has repeatedly promised to try to circumvent Congress using any arguably legal means available, on the rather extra-constitutional grounds, contrary to the norms attendant to the separation of powers, that “we can’t wait” for Congress to pass legislation that the president favors.

No one forced the president to ignore preexisting constitutional norms to advance his political agenda. And it’s just a little too cute for his administration, heedless of constitutional norms in a variety of contexts, to appeal to them with regard to the Garland nomination.

This analysis is fair and correct as far as it goes.  In Ethics Alarms terms, Democrats are ethically estopped from complaining about the Republicans being just as high-handed and contemptuous of tradition and process as Obama has been from the start. It all breaks down, however, when one considers that confirming Garland advances the GOP political agenda as far as it is likely to be advanced under these circumstances. Nobody gains by following through on McConnell’s pledge, not Obama, not Garland, not the Court; not Republicans, not Democrats, not the public, not the law and not the political process.

It will make the worst of Republican members happy, though, so that’s what the GOP Senators will do. Unethical, unpatriotic and stupid.

If it continues on this path, the GOP will have proven itself too unethical and irresponsible to be trusted.




30 thoughts on “Ethics Verdict: The Republicans Should Vote On (And Approve) Judge Merrick Garland

  1. See this:

    Garland’s votes in gun cases also suggest that he might be a vote to roll back (if not effectively overturn) D.C. v. Heller and McDonald v. Chicago. This alone may be enough to spur many Republicans to stand firm against considering his nomination.

  2. They will bluster and make the usual roadblocks but – as Paul Harvey would say: “The rest of the story.” The public posturing would be for selected voter consumption and selected seat protection.

    Behind the scenes, it will simply be a tally of votes to see who could vote no to (1) Protect his/her “philosophy. (2) Be able to tell constituents and various special interests types: “I tried.” Those not vulnerable or up for election can therefore affirm and the others will not. Based, of course, on the projected vote totals.

  3. “If it continues on this path, the GOP will have proven itself too unethical and irresponsible to be trusted.”

    It already has. Two words: Donald Trump…just the fact that he was allowed to run

  4. This a godsend for Republicans. If they were smart, they would wait to confirm until after the primaries, but before the general elections. This way they won’t get shellacked on this issue then.

    But with Trump at the head of the ticket (or worse, “notTrump” splitting the party apart), they are pretty much guaranteed to go down in the general, and lose a bunch of Senate seats as well. Then when Hillary gets into office, they will be looking at Supreme Court Justice nominee Barack Obama. That is going to be way worse for them than this guy.

      • As an appointee. That two others resigned rather than carryout the order to fire Cox was telling, for me, as was the public response. That Nixon had the legal authority to issue the order does not make it ethical. No person of interest can ethically fire the person investigating them.

  5. I largely agree. The only sticking point I have is that I think it’s quite likely that even if republicans play nice on this, the Democrats will not return favor when a Republican president tries to nominate someone. Republicans are “evil” after all.

    Maybe they can combine agreement with an official rule change which will make this crap less likely going forward.

    • I’m going to walk that back a little bit. I approved of many of Scalia’s 4th amendment decisions. To the extent that Garland is more prone to narrow readings of the bill of rights, that would also be a legitimate reason not to vote for him. I’m not sure how much stock to put into claims that “he’s more conservative on criminal justice issues” though. Legal decisions do NOT fit neatly into the conservative/liberal labels.

    • Phlinn, saying: “I think it’s quite likely that even if republicans play nice on this, the Democrats will not return (the) favor when a Republican president tries to nominate someone.” seems to me to fall into these rationalisations;

      2. Ethics Estoppel, or “They’re Just as Bad”
      7. The “Tit for Tat” Excuse
      32. The Unethical Role Model: “He/She would have done the same thing”

      You then followed up with:
      48. Ethics Jiu Jitsu, or “Haters Gonna Hate!”

      Jack is right when he says: “You’re supposed to do that even when it hurts….”.

      How about some positive ethical rationalisations Jack? My son came up with a good one to defend acting ethically at a cost during a debate recently: “That’s what we do. WE’RE the GOOD guys!”

  6. Can’t win here. If they confirm him, they lose the base, and the election with one too many cave-ins. If not, Trump runs and they lose anyway.

  7. Remember how we were talking about Nancy Reagan and bridge building? This comes close. I doubt that it would have happened had the senate not been so vocal, so quickly, and Obama not seen his opportunity to do to the senators what Putin did to him and Kerry over the Syrian chemical weapon fiasco, but it was well played and an excellent choice. I’ll give credit where it’s due.

  8. On a completely unrelated note: Is there anyone slimier than Lindsay Graham?

    Dec. 2: “Ted Cruz’s foreign policy has been uneven and he has done more to allow ISIL to gain a foothold in Syria than any Senator other than Rand Paul.”

    Dec. 2: “I think [Ted Cruz] is an opportunist, he’s a libertarian when it is hot.”

    Dec. 3: ““If the nominee of the Republican Party will not allow for an (abortion) exception for rape and incest, they will not win,” … “Ted Cruz doesn’t have an exception for rape or incest.”

    Jan. 21: “If you nominate Trump and Cruz, I think you get the same outcome,” … “Whether it’s death by being shot or poisoning doesn’t really matter. I don’t think the outcome will be substantially different.”

    Feb. 4: “[Ted Cruz is] just as wrong as Obama, if not worse.”

    Feb. 4: “If you’re a Republican and your choice is Donald Trump and Ted Cruz in a general election,” … “it’s the difference between poisoned or shot — you’re still dead.”

    Feb. 26: “I was asked the hardest question in my political life: Do you agree with Donald Trump that Ted Cruz is the biggest liar in politics?” he said. “Too close to call.”

    Feb. 26: “If you killed Ted Cruz on the floor of the Senate, and the trial was in the Senate, nobody would convict you,”

    Yesterday: “I support Ted Cruz.”

    • Fixed that for you: you had Mediaite when you meant Media Matters. The key difference is that Media Matters is a complete joke, an hack advocacy website pretending to be a watchdog. This is as good an example as any:

      “Media are making false comparisons between current Republican rhetoric and past Democratic actions and comments to undermine the president’s pledge to nominate a replacement for the late Supreme Court Justice Antonin Scalia. Unlike Democrats in the past, Republicans are indicating they will refuse to even engage in the nomination process at all, an abdication of their basic constitutional responsibilities that is unprecedented.”

      To begin with, this paragraph would flunk 7th grade English: “responsibilities that is unprecedented”? The whole thing is a disaster. Also, you can’t “undermine” a pledge, or refuse to engage in the nomination process when you aren’t the one nominating anyone. I think MM means “confirmation process.”

      The claim that the GOP is violating the Constitution is false: nothing there obligates the Senate to have hearings or hold a vote.

  9. It appears Republicans are losing an ugly game of chess. I previously commented that McConnell’s refusal to consider a nominee was the best move from a weak position, and that I expected Obama to nominate a judge whom was visibly a member of some cherished minority group. Obama played brilliantly by quickly nominating Garland – a judge as close to conservative as one could predict (and not obviously a minority in any respect), and with plenty of time before the presidential election. With nearly a year between now and the next inauguration (giving Obama time for another nomination), and the possibility of a Democrat victory (with an anti-free speech litmus test), I’m now considering the implications of a Ginsburg retirement, death, or extended sleeping spell. If Garland is confirmed, might she resign immediately (setting the Republicans up to consider a second, more liberal nominee)? Not only do I hate being incorrect, but I think I’m several moves behind my opponent. I find it unpleasant.

  10. The right thing to do, as things now stand, is to stop every single action undertaken by a man who is not only unfit to serve as president, but to be regarded as a citizen in any capacity. The chain of depredations and treasonous activities on Obama’s part throughout the entire course of his life dictate that nothing he proposes can be viewed as other than another assault on America’s security and freedom unless proven otherwise with exacting investigation. The most reasonable policy by the Senate at this time would be to deny Obama any further appointments at all. It’s already to their shame that they passed many of the ones that they did

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