The Cable

Obama Dares GOP to Block the Supreme Court Nominee Republicans Love

Republicans have expressed support for Merrick Garland, Obama's Supreme Court pick, in the past. Will they give him a vote?


President Barack Obama nominated Merrick Garland to serve on the U.S. Supreme Court, setting up a protracted fight with the congressional Republicans who have vowed not to even hold a vote on the White House’s choice to replace conservative Justice Antonin Scalia.

Garland currently serves as the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, where his earlier rulings show a willingness to sometimes defer to — and sometimes check — presidential power. In 2003, he backed the George W. Bush administration’s argument that federal courts had no jurisdiction to hear legal challenges from detainees at the military prison in Guantánamo Bay, Cuba. But in 2008, he broke with the White House and voted to overturn the designation of a Guantánamo detainee as an enemy combatant, a tag that would allow U.S. authorities to hold a prisoner for the duration of a conflict.

This wasn’t the first time Garland had been considered for the highest U.S. court: He was a finalist for the first two Supreme Court vacancies Obama filled that ultimately went to Justices Sonia Sotomayor and Elena Kagan. When he was nominated to his current post, he was approved by a 76-to-23 vote, with many Republicans lining up to praise his qualifications.

“His record is extraordinary. I have been on the Judiciary Committee going into my 17th year, and I do not believe I have seen a nominee with the qualifications that this man has,” then-Sen. Arlen Specter (R-Penn.) said of Garland at the time.

He won’t get remotely the same treatment this time around. Since Scalia’s death in February, Senate Republicans have said the next president, not Obama, should nominate a replacement. On Monday, the Republican National Committee formally launched an effort to block whomever the president nominates. By Wednesday morning, the initial GOP reaction suggested Garland wouldn’t get a confirmation hearing anytime soon, if at all.

Still, the nomination puts some GOP lawmakers in a tight spot. Sen. Orrin Hatch (R-Utah), the longest-serving Republican on the Senate Judiciary Committee, said earlier this month that “[Obama] could easily name Merrick Garland, who is a fine man,” implying he might back the nomination. When Garland was appointed to the D.C. seat in 1997 by former President Bill Clinton, 32 Republican senators — including Hatch — voted for him.

Obama emphasized that previous GOP support, particularly from Hatch, in his comments Wednesday. The president said Garland has “the respect and administration of leaders from both sides of the aisle” and noted that Garland has 19 years on the D.C. Circuit, the second highest court in the land.

“I simply ask Republicans in the Senate to give him a fair hearing and then an up-or-down vote,” Obama said. “I have fulfilled my constitutional duty. Now it’s time for the Senate to do theirs.”

When accepting the president’s nomination, Garland said, “This is the greatest honor of my life.” He then added, “There could be no higher public service than serving as a member of the Supreme Court.”

If confirmed, now or by the next Senate, Garland would bring significant experience handling thorny national security issues. In 2003, for instance, he joined an opinion that found courts had no jurisdiction to hear lawsuits filed by detainees at the military prison at Guantánamo Bay.  

In another case, in 2008, he voted to overturn then-President George W. Bush’s designation of a Guantánamo detainee as an enemy combatant. He argued that the White House had held back evidence from the courts and said that upholding the tag “under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive detention.”

Garland was also deeply involved in the government response to what had been, until 9/11, the deadliest terrorist attack on U.S. soil: the 1995 Oklahoma City bombing, which killed 168 people. Garland led the investigation and oversaw the prosecution of Timothy McVeigh, who was sentenced to death and executed in 2001.

In his Rose Garden comments, Obama noted that, after the bombing, Garland had carried around the program from the memorial service with the names of the dead listed.

In 1994, he became principal associate deputy attorney general at the Justice Department, where he supervised the massive inquires that eventually led to the prosecutions of the bombers of the federal building in Oklahoma City, as well as the Unabomber, Ted Kaczynski.

Garland was born in Chicago and graduated from Harvard College and Harvard Law School. He then clerked for two of the 20th century’s most influential jurists — Judge Henry Friendly of the 2nd Circuit Court of Appeals, in New York, and Justice William Brennan at the Supreme Court.

He became a partner at the law firm Arnold & Porter before joining the Justice Department. As an assistant U.S. attorney in Washington, he handled the investigation of then-Mayor Marion Barry.

He was named to the federal appeals court in 1997 and became chief judge in February 2013.

Photo credit: Chip Somodevilla/Getty Images

Trending Now Sponsored Links by Taboola

By Taboola

More from Foreign Policy

By Taboola