WASHINGTON — President Barack Obama nominated appeals court judge Merrick Garland to the Supreme Court on Wednesday, thrusting a respected moderate jurist and former prosecutor into the centre of an election-year clash over the future of the nation’s highest court.
Obama cast the 63-year-old Garland as “a serious man and an exemplary judge” deserving of a full hearing and a Senate confirmation vote, despite Republican vows to deny him both. Standing in the White House Rose Garden with Garland, Obama argued the integrity of the court was at stake and appealed to the Senate to “play it straight” in filling the seat left vacant by the death of Justice Antonin Scalia.
“It’s supposed to be above politics,” Obama said of the high court. “It has to be. And it should stay that way.”
Republican leaders, however, held to their refusal to consider any nominee, saying the seat should be filled by the next president after this year’s election. Senate Majority Leader Mitch McConnell spoke with Garland by phone but did not change his position that “the American people will have a voice.” He said he would not be holding “a perfunctory meeting but he wished Judge Garland well,” a spokesman said.
Others in the GOP ranks were less wedded to the no-hearing, no-vote, not-even-a-meeting stance — a sign that Republicans are aware the strategy could leave them branded as obstructionist.
Unlike McConnell, Senate Judiciary Committee Chairman Charles Grassley said he is open to meeting with Garland in the coming weeks, as did five other Republican senators — Rob Portman of Ohio, Jeff Flake of Arizona, Susan Collins of Maine, James Inhofe of Oklahoma and Kelly Ayotte of New Hampshire. The judge will begin visiting with Democratic senators on Thursday at the Capitol, before the Senate breaks for a two-week recess.
Scheduling courtesy meetings is a long way from securing a full hearing, much less winning the 60 votes needed for confirmation. Still, the White House seized the comments as evidence Garland’s weighty resume and bipartisan credentials were putting pressure on Republicans.
Garland, 63, is the chief judge for the United States Court of Appeals for the District of Columbia Circuit, a court whose influence over federal policy and national security matters has made it a proving ground for potential justices.
A graduate of Harvard College and Harvard Law School, Garland has clerked for two appointees of Republican President Dwight D. Eisenhower — the liberal Justice William Brennan Jr. as well as Judge Henry J. Friendly, for whom Chief Justice John Roberts also clerked. As a federal prosecutor, he made his reputation overseeing the investigation and prosecutions in the Oklahoma City bombing case in 1995, as well as the case against Unabomber Ted Kaczynski.
When confirmed to the D.C. Circuit in 1997, Garland won backing from a majority in both parties, including seven current Republicans senators.
As a replacement for Scalia, Garland would undoubtedly shift the court away from its conservative tilt. He would be expected to align with the more liberal members on environmental regulation, labour disputes and campaign finance.
The D.C. Circuit isn’t a hotbed for cases on social issues, leaving few solid indicators of Garland’s views on abortion rights or the death penalty.
Garland’s involvement in two high-profile gun rights cases has prompted concern from gun control opponents. In 2007, Garland wanted the full court to reconsider a panel decision that struck down Washington, D.C.’s ban on handgun ownership. But Garland never took a position on the merits of the case.
In 2000, he was part of a 2-1 majority that said the FBI could retain gun purchase records for six months to make sure the computerized instant background check system was working. The FBI’s position was challenged by the National Rifle Association and other gun rights groups.
But he is not viewed as a down-the-line liberal. He’s ruled against giving the District of Columbia a vote in Congress. Particularly on criminal defence and national security cases, he’s earned a reputation as centrist with a law-and-order streak, siding more often with prosecutors.
When his name was floated for the Supreme Court in the past, it was liberal groups that expressed concerns, pointing to early decisions favouring the government in disputes over the legal rights of detainees at the Guantanamo Bay prison.
Progressives and civil rights activists also had pushed the president to name an African-American woman or to otherwise expand the court’s diversity. Obama passed over appeals court Judge Sri Srinivasan, who would have been the first Asian-American justice, and Judge Paul Watford, who would have been the second African-American.
Garland — a white, male jurist with an Ivy League pedigree and a career largely in the upper echelon of Washington’s legal elite — breaks no barriers. He would be the oldest Supreme Court nominee since Lewis Powell, who was 64 when he was confirmed in 1971.
In emotional remarks in the Rose Garden, he choked back tears, calling the nomination “the greatest honour of my life.” He described his grandparents’ flight from anti-Semitism in Eastern Europe and his modest upbringing. He said he viewed a judge’s job as a mandate to set aside personal preferences and “follow the law, not make it.”
Obama quoted past praise for Garland from Roberts and Sen. Orrin Hatch. In 2010, Hatch said he could be confirmed to the highest court “virtually unanimously.”
Garland has experience with a prolonged confirmation process. He waited 2 1/2 years to win confirmation to the appeals court. Then, as now, one of the men blocking his path was Grassley, who argued he had no quarrel with Garland’s credentials but objected to a Democratic president trying to fill an appeals court he felt had too many seats.