Obama's Choice of Garland for Court Tests Republican Obstruction

Mike Dorning, Greg Stohr, Steven T. Dennis

Barack Obama challenged Senate Republicans’ obstruction of a Supreme Court appointment by offering a nominee they would probably welcome from a Democratic president in a less volatile political environment.

Merrick Garland, the 63-year-old federal appeals court judge that Obama chose, is the most moderate and oldest of the finalists the president considered. His nomination highlights White House charges of Republican intransigence and partisan gridlock. The Senate president pro tempore, Republican Orrin Hatch of Utah, once recommended Garland for the court.

Obama passed over candidates with more potential to tilt the court decidedly to the left, including federal appeals court judges Sri Srinivasan, who would have been the first Asian-American justice, and Paul Watford, an African-American. Their confirmation battles could have energized core Democratic voters.

The Republican opposition showed a few cracks immediately after Obama announced Garland’s nomination, though party leaders reiterated their vow not to consider any Obama pick. Republicans Jeff Flake of Arizona, Kelly Ayotte of New Hampshire and Susan Collins of Maine all said they would at least meet with Garland when he begins visiting with senators on Thursday, breaking with their party leaders. Mark Kirk of Illinois said he would consider Garland.

Collins also called for a confirmation hearing and Hatch said he would "probably" support confirming #Garland after the November presidential election, should a Democratic candidate win.

Flake too said he "would be open" to confirming Garland under that scenario.

“I am concerned about the direction of the court,” Flake told reporters Wednesday afternoon. “And faced with the choice" between “putting Garland on the court or a pick by Hillary Clinton, I would go for Garland.”

Garland will head up to Capitol Hill Thursday to meet with Senate Minority Leader Harry Reid and the ranking Democrat on the Senate Judiciary Committee, Patrick Leahy of Vermont, according to White House spokesman Eric Schultz. Judiciary Chairman Chuck Grassley, an Iowa Republican, has agreed to meet with Garland after the Senate’s upcoming two-week recess, Schultz said.

’Consensus Nominee’

Obama said in the White House Rose Garden on Wednesday that Republican senators had recommended Garland to him each of the three times a seat had opened on the court in his presidency. The White House circulated a 2010 news account in which Hatch had declared that Garland would be a "consensus nominee."

"I simply ask Republicans in the Senate to give him a fair hearing and then an up or down vote,” Obama said with Garland by his side. “If you don’t, it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process of nominating and approving judges that is beyond repair."

The nomination intensifies an unprecedented dispute between the White House and Senate Republicans that will dominate the final 10 months of his presidency. Republican leaders say a replacement for the late Justice Antonin Scalia, with the potential to swing the court’s ideological majority, should be decided by Obama’s successor.

Senate Majority Leader Mitch McConnell, a Republican, reiterated that his chamber won’t consider any nominee put forth by Obama.

“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 on the Senate floor less than an hour after Obama’s announcement.

Later Wednesday, McConnell spoke with Garland by phone, but said he would not meet with the nominee, according to a statement from McConnell’s office.

‘Public Service’

White House Press Secretary Josh Earnest told reporters later on Wednesday that Garland was "absolutely" Obama’s first choice for the job. Garland choked up as he thanked the president for choosing him.

“For me, there could be no higher public service than serving as a member of the United States Supreme Court,” he said, crediting his parents with instilling a sense of duty in him and his siblings.

“People must be confident that a judge’s decisions are determined by the law and only the law,” Garland said, in remarks seemingly crafted for Republican ears. "He or she must put aside personal preferences and follow the law, not make it."

McConnell of Kentucky and Grassley have said they would neither hold hearings on a nominee nor schedule a vote before the presidential election in November.

"A majority of the Senate has decided to fulfill its constitutional role of advice and consent by withholding support for the nomination during a presidential election year, with millions of votes having been cast in highly charged contests," Grassley said in a statement after Obama’s announcement.

Hatch said in a statement that “the right course of action is to wait until after this year’s election to consider a nominee to fill Justice Scalia’s seat.”

Overtures Rebuffed

The White House has cast Republicans’ position as unprecedented brinkmanship that defies the Constitution. The president’s overtures to Senate Republicans -- including rounds of telephone calls and a meeting in the Oval Office -- have largely been rebuffed, as Grassley has not budged on his pledge to block Obama’s nominee.

The Obama administration even pointed to an op-ed by Alberto Gonzales, who served as attorney general under Republican President George W. Bush, calling for Senate Republicans to move ahead with a hearing and a floor vote.

The vetting process, which began shortly after Scalia died on Feb. 13, was immediately shrouded in a partisan politics as Democrats and Republicans weighed the impact on the presidential election.

Garland’s resume bears similarities to that of Chief Justice John Roberts. Like Roberts, Garland is a Harvard Law School graduate who clerked for federal appeals court judge Henry Friendly and later took a seat on the U.S. Court of Appeals for the D.C. Circuit. Garland also clerked for Justice William Brennan and worked in the Clinton administration’s Justice Department, when he oversaw the Oklahoma City bombing case.

Garland would be the oldest Supreme Court nominee since President Richard Nixon selected 64-year-old Lewis Powell in 1971.

A Chicago native, Garland graduated from Harvard College. Between stints in the government, he was a partner at Arnold & Porter LLP in Washington.

John Marshall

President Bill Clinton first nominated Garland to the D.C. Circuit in 1995. That year, Garland told the Senate Judiciary Committee that the Supreme Court members he most admired were Chief Justice John Marshall and Justice Oliver Wendell Holmes. Garland promised to try to be “as brief and pithy” as Holmes.

After the Republican-controlled Senate didn’t bring the nomination up for a vote, Clinton renominated Garland in 1997. He then won confirmation on a 76-23 vote, overcoming Republican contentions that the appeals court didn’t need an additional judge. Seven Republicans still in the Senate voted for his confirmation then.

Several important issues hang in the balance for the court, where Scalia served as an outspoken defender of conservative causes for three decades. With eight justices currently on the court, cases on abortion, immigration and unions could end up in a 4-4 split. In that case, lower court decisions stand but don’t set national precedents.

Republicans have cast Obama’s effort to name a justice as a pivotal battle, the outcome of which would tip the balance of the court for decades to come. Senator John Cornyn, a Texas Republican, said the president’s choice would probably be treated like “a piñata” by the Senate.

Ideological Moderate

If confirmed, Garland would be the third justice Obama has appointed to the bench, and the only white male. Obama also appointed justices Elena Kagan and Sonya Sotomayor, and Garland made his short list before those nominations as well. Garland’s judicial record suggests he is the most moderate judge, ideologically, that Obama considered for Scalia’s seat.

On the D.C. Circuit, Garland wrote for the court in 2015 when it unanimously upheld a 75-year-old ban on federal contractors making federal campaign contributions. “The concerns that spurred the original bar remain as important today as when the statute was enacted,” he wrote.

In 2014, Garland led a three-judge panel that upheld the conviction of a former U.S. House committee staff member for illegally taking World Series tickets and a visit to a strip club from Jack Abramoff’s lobbying group in return for his influence on a federal highway bill.

He wrote a 3-0 decision in 2008 rejecting the government’s “enemy combatant” designation of a Chinese man being held at Guantanamo Bay, the U.S. naval base in Cuba.

Campaign Impact

The nomination battle has already impacted the 2016 presidential campaign, with all Republican candidates saying a new president should be sworn in before a new justice takes the bench for a lifetime appointment. John Kasich, the Ohio governor who won the Ohio Republican primary on Tuesday, said on Wednesday that Obama shouldn’t have sent the Senate a nominee.

"I think this is not good for our country," he said.

Democratic candidates Bernie Sanders and Hillary Clinton have each accused Republicans of trying to de-legitimize Obama by blocking his Supreme Court nominee. They both issued statements praising Garland.

About 63 percent of Americans believe the Senate should hold hearings on Obama’s nominee, according to a Washington Post-ABC News poll that was released March 10, before the nomination was announced. About 32 percent said the Senate shouldn’t hold hearings.

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