It’s not too late for the U.S. Senate to do its job

The facts of the Merrick Garland nomination still demand action (and indicate that it may still be possible)

“Better late than never.”

It’s an unfortunate aspect of modern American politics that this simple little aphorism of compromise and common ground is frequently derided and discarded as the language of “losers.” In today’s hyper-partisan world of supersized egos, pitched ideological battles and “winner take all” government, it’s frequently seen as a sign of weakness for politicians to admit an error and reverse course or for their opponents to accept such a change with grace and understanding. It’s better to plow ahead (or to accuse the other side of a “flip flop”) and score points with one’s political base – or, at least, so goes the thinking in some circles.

Happily, all hope is not lost in this realm. Despite the toxic tack that the national political debate has taken throughout most of 2016, major opportunities remain to pull back from the precipice of utter gridlock and to get some important things done that will benefit the nation and the various political players on both sides of the national divide. What’s more, there are even a few indications that the men and women in power in Washington are beginning actually to grasp this reality.

Ending the Supreme Court blockade

One of the best opportunities on this front at the national level is the nomination of Judge Merrick Garland to serve on the U.S. Supreme Court. As of today, it’s now been 175 days since President Obama nominated Garland to the high court. If there’s a better example of destructive, partisan conflict in the federal government in recent years, it’s hard to think of one. Consider the following facts about the status of the Garland nomination (and the contention of Senate Republicans that it would be wrong to hold a hearing during an election year) compiled by advocates in the “Why Courts Matter” project at the Center for American Progress:

• No Supreme Court nominee has ever waited this long for consideration from the Senate.
• To this point, the record for the longest ever confirmation process for a Supreme Court justice is held by Justice Louis Brandeis. From nomination to a final confirmation vote, Justice Brandeis’ confirmation process waited 125 days. That was in 1916.
• Nothing in the Constitution or American history suggests that the President’s duty to appoint a Supreme Court Justice nominee—or the Senate’s duty to provide advice and consent on that nominee—should be abdicated during a presidential election year.
• Since 1900, six Supreme Court justices have been confirmed during presidential election years. Overall, 17 justices have been confirmed during presidential election years. In fact, Justice Kennedy, President Reagan’s nominee, was confirmed by a Democratic Senate in the 1988 election year, by a 97-0 vote.
• Throughout American history, the Senate has never denied a President’s Supreme Court nominee a hearing before the Senate Judiciary Committee.

And make no mistake; the American people are paying attention. Again, here are the Why Courts Matter folks summarizing some recent polling results:

• More people are paying attention to the Supreme Court as an important issue right now than in recent history. The total number of people who ranked it as “Very Important” or “Fairly Important” is significantly higher than in 2012 or 2008.
• 65% of voters in a poll conducted by the Center for American Progress say they are watching the Supreme Court nomination process closely.
• Majorities of voters—across the partisan and ideological spectrum—want the Senate to hold a hearing and an up-or-down confirmation vote for Chief Judge Garland.
• Voters nationally overwhelmingly want the Senate to move forward with hearings and a vote on Chief Judge Garland’s nomination, by a 69 percent to 27 percent margin.
• By a 2-1 margin, voters nationally say they will look less favorably upon any elected official who refuses to support confirmation hearings and an up-or-down vote for Judge Garland.
• A full 70 percent of voters nationally believe Senate leaders are obstructing the nomination for political reasons rather than doing this based on what they think is best for the country.

Here in North Carolina, the public opinion numbers are similarly impressive. As Raleigh-based Public Policy Polling reported last month:

“We also find by a 60/23 spread that North Carolinians would like to see the Senate move forward with Merrick Garland’s nomination to the Supreme Court by holding hearings. There’s bipartisan agreement on that issue with Democrats (74/13), independents (55/24), and Republicans (43/36) all in agreement.”

Life with a divided Court

The most visible and important everyday impact of the Senate’s failure to act on the Garland nomination, of course, is that the Supreme Court has been forced to list along with only eight justices now for nearly seven months. Not only has this had a practical and negative impact on the Court’s capacity to accept and process cases, but, more importantly, it has left the Court ideologically split four to four.

The practical result of this split, in turn, can be seen in a number of important cases of late in which lower court rulings have been left to stand “as is” simply because the justices could not muster a fifth vote to overrule or sustain them. This was the case with the Fourth Circuit’s recent decision to strike down North Carolina’s “Monster Voting Law.” Rather than issuing a definitive ruling that would establish national precedent and send a clear message to lawmakers across the country on a matter of utmost importance, the Court was, in effect, forced to shrug its collective shoulders and leave law on the matter of voting rights to the vagaries of the various circuit courts of appeal.

And, of course, so long as this state of affairs prevails, the overall effectiveness and legitimacy of the federal courts (and, indeed, the federal government itself) are greatly undermined. One shudders to think what would happen if the Court were somehow confronted with a present day version of Bush v. Gore after the upcoming presidential election.

A path forward?

The root cause of the current deadlock is the unabashed obstructionism of the U.S. Senate Republicans. For months now, Senate majority leader Mitch McConnell and his top deputies (including Senate Judiciary Committee Chairman Charles Grassley of Iowa) have made clear that they would not consider any nominee from President Obama – no matter how qualified.

In recent weeks, however, one gets the distinct sense that this position is becoming less and less tenable. Whether it’s the stiff – almost rote – way in which senators (like North Carolina’s Richard Burr and Thom Tillis) repeat their excuses or the frequent leaks from GOP Senate “sources” that Garland (who most concede is one of the most qualified judges ever to be nominated to the Court) has been “wronged,” it seems clear that the blockade has lost a lot of steam. Recently, Senator Grassley indicated that he might actually be willing to allow Garland a hearing if his fellow GOP senators asked him to do so.

As for when the breakthrough might occur, things remain quite murky. With the Senate returning to Washington yesterday after its August recess, it now has plenty of time (at least four full weeks and conceivably more) to act before members depart again for the November election.

Another bit of common political wisdom, however, holds that senators will return to confirm Garland during a lame duck, post-election session if Hillary Clinton defeats Donald Trump in November – this on the theory that Garland would be as moderate a nominee as they’re going to get anytime soon after such an election result.

The bottom line is that whether its September/October or November/December, the facts on the ground are making it more and more likely that Garland will, in fact, be confirmed. Let’s hope and keep pushing for the former time frame, but, whichever the case, let’s also hope that Garland supporters have the good sense to accept and celebrate such a result with grace, few recriminations and the understanding that it will have been better late than never.