The man who is perhaps the quietest casualty of the fraught presidential election season, Merrick Garland, chief judge of the D.C. Circuit Court of Appeals, is still waiting in the wings for a chance at a confirmation hearing before the US Senate.
With Congress entering the first days of a seven-week summer recess, Chief Judge Garland is now poised to break the official record for the US Supreme Court nominee to wait the longest for a confirmation hearing. As of Tuesday, he has pulled even with Justice Louis Brandeis, who was confirmed after a half-year wait in 1916.
President Obama nominated Garland in mid-March, following the February death of conservative Justice Antonin Scalia. Conscious that whomever he nominated would face increased scrutiny due to the coming presidential election, Mr. Obama considered his choices for a month before he settled on Garland, who he felt was the nominee most likely to be granted a confirmation hearing.
“I’ve selected a nominee who is widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness, and excellence,” the president said during his March 16 announcement.
Yet despite Obama’s decision to nominate a man who he calls, “respected on both sides of the aisle,” the Republican-dominated Senate continues to refuse to grant Garland a confirmation hearing, instead hoping that Obama’s successor will make a new choice – assuming that that choice is more conservative.
Unfortunately for Garland, his situation is most unusual. Supreme Court nominees typically wait just over two months for a confirmation hearing. Obama’s previous nominees, Elena Kagan and Sonia Sotomayor, waited 49 and 47 days, respectively.
Although both Garland and the White House have taken steps to persuade Republican leaders, including Senate majority leader Mitch McConnell (R) of Kentucky, to grant the nominee a hearing, their efforts have been to no avail.
On Sunday, the Wall Street Journal published an op-ed written by Obama, decrying the Senate’s immobility on the issue and arguing that it sets a dangerous precedent for making the Court "a proxy for political parties," with "resulting lack of trust [that] can undermine the rule of law."
"This is much more serious than your typical case of Washington dysfunction," Obama wrote. "And if we allow it to continue, the consequences of congressional inaction could weaken our most important institutions, erode public trust and undermine our democracy."
Every other Supreme Court nominee in history has at least been granted a confirmation hearing, unless they withdraw their nomination, said Obama.
Without a nine justice court, important legal decisions can become deadlocked by ties. Without a tie-breaking justice, the Supreme Court has been unable to reach definitive decisions on a number of important issues; the late June decision on Obama's immigration policies, for example, was 4-4. Twenty nine lower courts have declared judicial emergencies.
Meanwhile, Reuters reports that some Republican Senators have said that if Clinton is elected, they may quickly confirm Garland, out of fear that Clinton might nominate a more liberal candidate.