Blog Post

President Nominates Merrick Garland to Supreme Court

Merrick garlandPresident Barack Obama announced his decision this morning to nominate Merrick Garland, the chief judge of the U.S. Circuit Court of Appeals for Washington DC and a so-called “moderate” to fill the Supreme Court vacancy left after the sudden death of Justice Antonin Scalia.

According to the Associated Press (AP), the president sent out an early morning email about his choice of Garland and explained that he had devoted a "considerable amount of time and deliberation to this decision" of who should replace Justice Antonin Scalia who died suddenly on February 13.

"In putting forward a nominee today, I am fulfilling my constitutional duty. I'm doing my job," Obama wrote. "I hope that our senators will do their jobs, and move quickly to consider my nominee."

It hardly seems likely. Conservative lawmakers, who control the majority in the Senate, have repeatedly said they will consider no nominee until after the presidential election in November.

According to The Hill, Obama called Senate Majority Leader Mitch McConnell (R-KY) this morning to announce Garland as his choice and was told that the Senate will not hold hearings on the nominee.

“We think the people should choose, as we’ve said repeatedly,” McConnell told reporters after the call.

However, Garland is one of the few judges Republican leadership has spoken favorably of in the past.

For instance, just last Friday, Sen. Orrin Hatch (R-UT), mentioned Garland during a discussion about the Supreme Court vacancy with Newsmax.

"[Obama] could easily name Merrick Garland, who is a fine man," the senator said at the time. "He probably won’t do that because this appointment is about the election," he added. "So I’m pretty sure he’ll name someone the [liberal Democratic base] wants."

Hatch also spoke glowingly about Garland the last time he was being considered for the high court which happened in 2010 when the president ultimately selected Justice Sonia Sotomayor to replace retiring Justice John Paul Stevens.

The Harvard educated Garland has been referred to by liberal mainstream sources such as The Washington Post and New York Magazine as a “moderate” who has made several centrist and even conservative decisions during his time on the DC circuit such as when he joined a ruling to ban Guantanamo Bay detainees from seeking relief in civilian courts.

In 1995, President Clinton nominated Garland for an opening on the D.C. Circuit. During that confirmation hearing, Garland was asked about "judicial activism." He answered that "[f]ederal judges do not have roving commissions to solve societal problems. The role of the court is to apply law to the facts of the case before it " and “ not to legislate, not to arrogate to itself the executive power, not to hand down advisory opinion on the issues of the day."

His nomination was stalled by Senate Republicans, not because of opposition to him but because of a dispute over whether to fill the twelfth seat on that court at all, writes Tom Goldstein of SCOTUS Blog.

Clinton re-nominated Garland in January 1997, and he was confirmed approximately three months later by a vote of 76-23 with 32 Republicans voting in his favor, seven of whom are still in office.

As for what impact Garland would have on the Supreme Court, Goldstein opined in 2010 that he has views that would have “particular salience” with Justices Kennedy and Alito.

“Certainly, to the extent that the President's goal is to select a nominee who will articulate a broad progressive vision for the law, Judge Garland would be a very unlikely candidate to take up that role.”

Time will tell if the Republican-led Senate will take up confirmation hearings this year, but at the moment, it seems unlikely.

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