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Merrick Garland was appointed to the Supreme Court by former President Barack Obama in March 2016. The Senate has never voted on his appointment.
Chip Somodevilla / Getty Images
hiding the legend
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Chip Somodevilla / Getty Images
Merrick Garland was appointed to the Supreme Court by former President Barack Obama in March 2016. The Senate has never voted on his appointment.
Chip Somodevilla / Getty Images
There has been so much going on in the past two years that many may have forgotten what happened to Merrick Garland in the spring of 2016.
But it's enough to remember to explain what has happened since
. ] To recap, Garland was appointed to fill the vacancy at the Supreme Court created in 2016 by the death of Justice Antonin Scalia, icon of conservative jurisprudence in February
Barack Obama quickly named Merrick Garland, 63, to take the seat. Garland has long been considered a prime prospect for the High Court, serving as Chief Justice at the District Court of Columbia Circuit appeal – a frequent source of judges sometimes called the "Little Supreme Court."
Widely regarded as a moderate, Garland had been praised in the past by many Republicans – including influential senators such as Orrin Hatch of Utah.
But even before Obama named Garland, and in fact only hours after the announcement of the death of Scalia McConnell said that any appointment by the incumbent president was null and void. He said the next president of the Supreme Court should be chosen by the next president – to be elected later this year.
"Of course," McConnell said. the American people should have a say in the direction of the court: it is the constitutional right of the president to appoint a judge of the Supreme Court and it is the constitutional right of the Senate to control the president and to refuse his consent.
Choices have often been controversial. There were contentious hearings, ground debates and disputed votes. But completely ignore the candidate, as there was no vacancy?
There was no precedent for such action since the period of the American Civil War and Reconstruction. No Democratic president had made an appointment while Republicans had held the Senate since 1885.
In an August speech in Kentucky, McConnell said, "One of my The most proud moments were when I looked at Barack Obama in the eye.Mr President, you will not fill the vacant post of the Supreme Court. "
McConnell was not alone. The 11 Republican members of the Senate Judiciary Committee signed a letter saying that they had no intention of consenting to an Obama candidate. And indeed, no proceedings of any kind whatsoever have ever taken place on the appointment of Garland
The court was to meet in October with only eight judges, often divided among the four appointed by the Democrats and the four named by the Republicans. On shorthand, the Court has stalled on a number of issues and refused to hear others.
Democrats were indignant, of course, but short of tools to answer. As a minority party – after a mid-term disaster in 2014 – they were unable to force a committee or a vote per chamber. They delivered speeches and urged voters to demonstrate in protest at the November elections.
Many academics – law professors, historians and political scientists – have asked the Senate to have at least one process for Garland. qualifications. But some jurists and scholars pointed out that the Constitution authorized [le Sénat] to "advise and consent", but that did not require it . (Some added that they thought the Senate should do so.)
A federal lawsuit was instituted to compel McConnell to hold a vote on Garland. It was rejected because a judge said the plaintiff, as an ordinary voter, did not have standing to sue.
McConnell argued that the Democrats had at least considered a similar tactic in 1992, when Joseph R. Biden was chairman of the Senate Judiciary Committee and dreamed of urging President George HW Bush to hold back all candidates to the high court until the end of the "political season".
At the time, the Senate had just gone through a deadly battle on the confirmation of Judge Clarence Thomas in 1991.
McConnell and others have nevertheless mentioned the "Biden Rule" to justify the Garland Blockade
With or Without Such justification, McConnell's blockade was doubly effective just as a power move.
First, he prevented the allocation of the choice of a Democratic president. If it had been taken into account, Garland could have attracted some members of the majority party from the other side of the aisle. Candidates to the Supreme Court almost always win at least some votes from the party that opposes the president, and Garland has a strong history of law and order. If he was well behaved on television, voting against him could have been more difficult – especially for Republicans who wanted to be re-elected in competitive states.
Second, and more importantly, the vacancy became a powerful motivator for conservative voters in the fall. Many have seen a vote for Trump as a way to keep Scalia's seat away from the Liberals and give the nomination to someone who has promised to appoint anti-abortion judges in favor of second-amendment rights.
In the fall, candidate Donald Trump was treating the Supreme Court as a touchstone, sometimes simply shouting the two words to his gathering crowds. Indeed, a poll showed that the vacancy of the court meant a lot to Trump voters, especially religious conservatives who had personal doubts about him.
McConnell's calculation has changed. With a slim but steady majority of the Senate, and Vice President Mike Pence available for tie, McConnell is confident that he can confirm Trump's candidate and get his people to vote again – this time , in gratitude.
The Democrats see all this as what their Senate leader, Chuck Schumer, calls "the height of hypocrisy." But will that guide voters more than they did in 2016, or motivate the disgruntled of their base?
Some say that the Democrats were injured two years ago, first with a candidate who did not want to excite the party base. Whatever his obvious virtues, Garland was another white man who, as a moderate of 63, could not promise decades of liberal warrior.
There is also ample evidence that the Supreme Court motivates the Conservatives more than the progressives. This has often been the case since the decision Roe v. Wade of legalization of abortion in 1973 triggered a period of social backlash that divided the old Democratic coalition
But Democrats are generally opposed to the government's closure strategies, especially given the potential backtracking on their own candidates. In 2016, it was still the Obama era and the executive administration of the Democrats. Closures rarely help the party perceived to be in power, even if it is not really in control.
So it was safer, in the judgments of spring and summer 2016, to let Republicans seem uncompromising and unjust and hope someone will notice them. Perhaps the injustice toward Garland would help Democrats win seats in supposedly blue states like Wisconsin and Pennsylvania, and even red countries like Missouri and North Carolina.
Instead, the country has moved on. There were very controversial primaries in both parties and a lot of other news to worry everyone.
In addition, and for fear of forgetting, the Senate Democrats and most others thought that they had an insurance policy on the vacant Scalia vacancy. The hypothesis was that Hillary Clinton would be elected. Clinton, despite winning the popular vote of several million votes, could have even contributed to a democratic Senate. And then she could have renamed Garland, or someone younger and more liberal.
Gradually, Democrats were cautious, overconfident, and uninformed about the country's state of mind. They lost in Wisconsin, Pennsylvania, Missouri and North Carolina, finding themselves in the minority.
This prevented them from preventing McConnell from eliminating the filibuster of Supreme Court candidates in 2017, paving the way for the confirmation of Trump's first choice. probably his second.
And that is the situation they are in today.
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