Why the GOP Continues to Push Back on Merrick Garland's Nomination.

October 22nd 2016

Willie Burnley Jr.

In March, President Obama nominated Judge Merrick Garland to the Supreme Court following the untimely death of Associate Justice Antonin Scalia. As early as February, Senate Republicans were adamant that no nominee put forward by the president — even a moderate judge such as Garland, whom many Senate Republicans have previously supported — would be given a hearing or a vote by the body.

The reasoning was blatantly political: Senate Majority Leader Mitch McConnell said that the nomination should “be determined by whoever wins the presidency in the fall.” At the same time, many of his colleagues noted that it would be unprecedented to wait a year to fill a Supreme Court vacancy.

The refusal of Senate Republicans to hold hearings on the Garland nomination is simply another kerfuffle in what has become a long string of intentional obstruction under President Obama.

During his term, President Obama has faced over 60 attempts by congressional Republicans to repeal his key piece of legislation, the Affordable Care Act, and a filibuster to defund that piece of legislation ended up in a government shutdown and consistent gridlock.

The refusal to work with the president has caused serious problems that go beyond the legislative arena, as well. President Obama's executive nominees have been blocked more times than all other presidents combined. The blocking of dozens of judicial nominees to other federal courts, which has made the pace of appointments in some cases the slowest in the last five decades, have caused "judicial emergencies" across the country that threaten the right to a speedy trial.

Of course, gridlock and obstruction are nothing new to the American political system.

Although Republicans have led the charge to block the president's agenda in the last several years, neither major party can claim that obstruction wasn't a tool of choice when politically advantageous.

In 1957, then-Democrat Senator Strom Thurmond launched a failed filibuster of The Civil Rights Act of 1957 and held the floor for over 24 hours; The act was eventually signed by President Eisenhower. Seven years later, a coordinated attack on the Civil Rights Act of 1964 by Southern senators, many of whom had to fight the more moderate wing of the Democratic Party at the time, led to a similar, albeit shorter, filibuster. Judicial nominees, though never Supreme Court ones, were blocked by Senate Democrats as recently as 2003 under President George W. Bush.

The refusal to hold hearings on Garland, however, has been called “unprecedented” by a group of legal scholars and historians in a letter sent to the president in March.

The letter makes note of several times in which the Senate has previously allowed presidents to fill vacancies on the Supreme Court and reads in part:

"It is technically in the power of the Senate to engage in aggressive denial on presidential nominations. But we believe that the Framers’ construction of the process of nominations and confirmation to federal courts, including the Senate’s power of “advice and consent,” does not anticipate or countenance an obdurate refusal by the body to acknowledge or consider a president’s nominee, especially to the highest court in the land. The refusal to hold hearings and deliberate on a nominee at this level is truly unprecedented and, in our view, dangerous."

A paper from the University of Illinois on the history of Supreme Court nominations found that there have been 103 cases in which, when a vacancy on Supreme Court appeared, a president has begun the appointment process prior to the election of a successor. Eight of those instances were during an election year.

In fact, the study found that in the history of the United States, there have only been six times in which the Senate sought to wait until a new president was in office before fulfilling its constitutional role to “advise and consent” on Supreme Court nominees. In three of those cases, vice presidents had ascended to the presidency after the death of a sitting president. In the other three, a nomination was made after there was already a new president-elect. Neither apply in this case.

Surprisingly, the lack of major crises in the U.S. might have actually precipitated a judicial crisis of its own.

“Crises have tended to break the political logjams, but in the absence of crises, we have seen intense obstruction driven by partisan efforts,” Dr. Matt Dallek, an associate professor at George Washington University and political historian, told ATTN:. Past crises include the September 11 attacks and the financial meltdown of 2007, where parties have had to work together in order to deal with the situation, Dallek says.


Dallek explains that during the 40s and 50s the major parties were much more ideologically diverse with Democrats having to balance their more conservative Southern-wing and Republicans contending with a more moderate, Northeastern-wing. The amount of difference within the parties wasn't conducive to ideologically extreme measures. These broad coalitions, which he said sorted themselves out in the 70s, made the kind of polarized politics that we see today difficult.

Furthermore, Dallek noted that the primary drive for obstruction today isn't necessarily as ideological as it was in the past. Rather there has been a strategic decision to “blow things up” by some congressional Republicans in order to not pass any legislation as a tactic in itself.

This constant opposition allows many Republicans, especially hard-liners in the Freedom Caucus, to distance themselves from the president's agenda during election cycles and point to his lack of accomplishments, he says.

There are signs, however, that obstruction isn’t going away anytime soon.

Recently, in spite of earlier statements made by his colleague, Sen. John McCain said that Senate Republicans will fight against any justice nominated by a President Hillary Clinton, and he is not alone in this promise.

During a debate at Brigham Young University, Sen. Mike Lee (R-Utah) reiterated that Republicans would block Garland. "I don’t believe there would be a real substantive distinction, a real noticeable difference between the voting pattern of a justice who would be appointed by a President Hillary Clinton . . . and Merrick Garland," he said.

While these political tactics don't bode well for future legislation, Dallek believes that if Republicans lose their third presidential race in a row, it could force them to rehash their strategy by working with Democrats, if only temporarily.

"It may be that defeat is significant enough that Republicans feel they need to rethink their approach,” he said.