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March 16, 2016

Supreme Court Calculus

The essential question for Senate Republicans.

The political implications are “yuge.” On Wednesday, Barack Obama nominated Merrick Garland to fill the Supreme Court vacancy left by the death of Antonin Scalia. Bill Clinton nominated Garland to the DC Circuit Court in 1995, and Obama insists he’s “uniquely qualified.” (It may be politically incorrect to say so, but we’re somewhat surprised Obama nominated an old white guy.) “This is precisely the time when we should play it straight,” Obama said, claiming Garland should be acceptable to Republicans in the Senate — in part because seven of them voted to confirm him (two years after his nomination) in 1997. Then again, Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley opposed Garland 20 years ago.

Garland certainly isn’t as far left as Obama could have gone with his pick, but is he anything like the originalist Constitution-defender that Scalia was. (Too few are.) While he didn’t take part in the ruling that eventually brought us the Supreme Court’s Heller decision on guns, he did vote for a full-court rehearing of the case — implying he thought both the DC Circuit and the Supreme Court were wrong to acknowledge the Second Amendment’s individual right to keep and bear arms.

McConnell issued a statement holding his ground: “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction. The Senate will continue to observe the ‘Biden Rule’ so the American people have a voice in this momentous decision. The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy.”

That brings us to an enormous political calculation for both sides, but primarily Senate Republicans. So far, they’ve rhetorically held the line, saying, “No Obama nominees will receive a hearing.” But that’s different from actually holding the line. And right now Republicans must be asking themselves this question: Do we take Obama’s bait — a.k.a. the “moderate” white guy nominee — while we control the Senate, or do we risk Hillary Clinton fast-tracking a leftist through a Democrat Senate if Donald Trump loses? In our estimation, they should hold the line, and then fight like hell to ensure the second scenario doesn’t happen. It’s about time the legislative branch stood up to executive overreach.


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