Merrick Garland's Supreme Court Seat

Alexandra F. Baldwin

Senate hearings related to the confirmation of Neil Gorsuch to the Supreme Court have begun, and Democrats aren’t handling it well. Frankly, there are really no good reasons to deny him confirmation (by “good” I mean “legitimate questions about his qualifications, character, temperament or intellect”), so they have resorted to a series of irrelevant, misconstrued or just plain silly tactics. And hey, look, I am going to link to Slate non-ironically on this idea: Neil Gorsuch is Not a Villain.

Some have tried to find questionable legal opinions…like “The Case of the Frozen Trucker” (which is NOT an episode of Scooby Doo, but rather an actual court case), or Gorsuch’s Hobby Lobby opinion. However, they already seem resigned to the poor efficacy of these lines of attack. Their personal attacks – that Gorsuch made some sexist comments to a class he taught (a charge that seems to be somewhat fabricated), for example, – are equally weak and unlikely to move the needle anywhere.

That leaves only one final criticism: that Neil Gorsuch is not Merrick Garland. That he is an interloper who is participating in a GOP plot to “steal” the seat that rightfully belongs to Obama’s nominee of February 2016. Both Dianne Feinstein and Patrick Leahy made reference to Garland in their opening remarks of the Gorsuch hearings, and other Senators can be expected to do the same. To many on the left, Mitch McConnell led a revolt against Constitutional norms and the intentions of the founders by refusing to consider any Obama nominee a full 11 months before Obama’s term expired, and they feel like a refusal to consider Gorsuch now is a fair response to that.

And you know what? As I wrote two months ago, I don’t think they’re wrong, at least about the first part. The Senate is empowered by the Constitution to provide “advice and consent,” a perfectly vague phrase that allows for a pretty broad interpretation. I don’t think for a second that Madison and Jefferson intended for the Senate to simply refuse to consider a nominee for nearly a year in hopes of their party winning an election. But, there is absolutely no doubt that the Constitution allows the Senate that right. Is it in the spirit of the clause? I don’t think so, but it is certainly within the letter. Is that 11 month window going to be extended to 18 months and then 24 months at some point in the future? Probably.

The Senate is not *required* to hold hearings on anyone appointed to the court. The Constitution gives them the right to do pretty much anything other than the outright ban of the judicial branch. If they so decide to, they can leave these seats empty forever, or they can just go ahead and reduce the size of the Court to 8, or 7 or even just 1 member if they so choose (although THAT would be an actual Constitutional Crisis).

So, yes, Republicans were unfair to President Obama and to Judge Garland, an unquestionably qualified, entirely reasonable jurist who was certainly intellectually fit for the court. And yes, Republicans refused to hold a hearing because, had they held those hearings, they likely would have come up with very few good reasons to ultimately vote against Judge Garland. Democrats are entirely justified in criticizing the political maneuverings of their Republican colleagues.

Blah, blah, blah. None of that matters at all.

There was one clear and easily understood remedy available to Democrats for the Republican’s overreach: win elections. The Constitutionally prescribed path to hold the Republicans accountable for their expansion of the definition of “advice and consent” is really pretty easy:  make it a campaign issue, inform voters of the dereliction of duties by the GOP, and then let the voters decide what they think. Alternately, they could have won a Presidential election on the grounds that their proposed justice was not being given his fair hearing, and that only by electing another Democrat would Republican Senators be forced to finally consider the rightful nominee.

We can argue about whether Democrats didn’t make this argument effectively or the voters simply rejected the idea as it was presented, but the voters’ verdict was clear. The unwillingness to hear the nominee was barely an issue in any campaign that mattered, and voters proved to be unfazed by the GOP’s tactics. In other words, Mitch McConnell gambled on the outcome of the Presidential election, and on the willingness of voters to care about his gamble, and he won on both counts.

Democrats had their chance. They didn’t/couldn’t make this a campaign issue, at least not to a degree that voters were willing to send enough Senators to Washington to rectify it. I happen to agree with their logic – the Senate should have heard Garland – but there simply were not enough voters willing to cast a vote in support of that idea. Democrats lost that argument, and there are no pithy slogans or indignant refusals to consider Gorsuch as “legitimate” that can change that. As one unnamed politician of recent years once said, “Elections have consequences.”

The good news for Democrats, I suppose, is that they should now have learned that voters are not going to hold procedural shenanigans against them. It seems unlikely that efforts to filibuster Gorsuch (or key legislation, for that matter) will come back to hurt them in future elections. That, of course, will probably be of little consequence beyond forcing the GOP to permanently end Senate filibusters, another procedural change unlikely to have electoral consequences.

Ultimately, in a Democratic Republic, the voters get the final say on most issues. It may happen directly or it may take some time, but elected officials have to win the support of their constituents to get and keep their jobs. I’m sure that it is frustrating when those voters refuse to hold your political opponents accountable in a way that you think they should but, as they say, “them’s the breaks.”

Merrick Garland should have gotten a hearing and an up or down vote from the Senate. But he didn’t, and the voters decided that they were ultimately OK with that. It is not his seat to have and it was not Obama’s seat to fill. The seat belongs to the people of the United States, and the people get to pass judgment on those who fill that seat. The Democrats may have held the moral high ground in that argument, but the ultimate arbiters decided that that moral high ground was not worth firing their Senators and replacing them with Democrats over. Pat Leahy and Dianne Feinstein and their colleagues are welcome to continue harping on this as long as they want, but it will remain little more than a waste of breath. The argument is over, and they lost.