THE POLITICS OF JUDICIAL CONFIRMATION

In light of President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia, partisans on both sides of the political aisle are shocked – shocked – to discover that the other side is playing politics. But there is an important difference. The Democrats are playing smart. The Republicans are playing dumb.

That should not come as a surprise. After all, this is the year the Republicans have shown themselves hell-bent on ensuring that they lose the presidential election. While the Democrats proceed to nominate Hillary Clinton — a figure so shady that she is widely viewed by her own Party as untrustworthy —  the Republicans are en route to nominate Donald Trump, their one candidate who consistently lags well behind Clinton in the polls. And for good measure, he lags even farther behind Bernie Sanders.

That is dumb politics. But the Republican Party position on the nomination of Judge Garland is, if possible, even dumber.

Senate majority leader Mitch McConnell lost no time in telephoning the nominee, and telling him not to bother coming up to Capitol Hill because the Senate would not take up his nomination.

Now this position might make sense if the choice were between Judge Garland now and a conservative nominee to be named later by a successful Republican presidential candidate. But that is not the choice. The Republicans are likely to lose the presidential election in November if, as now seems probable, they nominate Donald Trump. And it is certainly possible that a Trump candidacy will drag down four of the 24 Senate seats the Republicans are defending this year. In fact, in two important races, polls show incumbent Republican Senators Mark Kirk of Illinois and Ron Johnson of Wisconsin trailing their Democratic opponents by over ten points.  If the Democrats take control of the Senate, then the choice will not be between Judge Garland now and a conservative nominee later. It will be between a judicial moderate now and an extreme judicial liberal activist later.

Imagine President Hillary Clinton nominating Elizabeth Warren, with hearings presided over by a Democratic controlled Senate Judiciary Committee chaired Patrick Leahy. That is the alternative universe the Republicans must consider in determining how to respond to the Garland nomination.

Will that scenario actually occur? There is no clairvoyant on call to tell us. But it could. And the Republicans are irresponsible – worse, they are dumb – to ignore the possibility.

How would a smart Republican Party react to Judge Garland’s nomination?

It would agree, with appropriate gestures of reluctance, to hold hearings. But its agreement would carry conditions. The hearings, of course, would have to be preceded by careful scrutiny of the Judge’s record. Since he has been on the bench for almost two decades, that would take time. Summer is coming, and many politicians and staff will be out of town. And since President Obama has chosen to make the nomination in an election year (we warned him not to; he never listens), Committee members of both parties will need to make campaign trips back home.  So scheduling hearings any sooner than Labor Day just won’t be practicable.

If history is any guide, by September the country should have a pretty clear idea of who will win the election. If a Clinton election appears likely, then the Republicans should face the fact that Judge Garland, while far from ideal, is probably the best they are going to get, especially if Clinton’s margin in the polls appears large enough to jeopardize the Republicans’ hold on the Senate. If Trump (or some surprise savior like Paul Ryan) appears headed to victory, then the Republicans should not settle. They should vote Judge Garland down and hope for an opportunity to replace Justice Scalia with someone closer to his judicial philosophy. If the race appears too close to call, they will have no choice but to roll the dice, one way or the other.

The Republicans’ reflexive obstructionist approach makes no sense. Not because it plays politics — but because it plays politics incompetently.

There is nothing inherently wrong with mixing politics with the judicial nomination process. The Appointments Clause of the Constitution is part of the system of checks and balances which the framers, in their wisdom, incorporated into our structure of government to prevent any one branch, or any one faction, from amassing too much power. It calls for the President to nominate judges and other officials, and for the Senate to approve or reject those nominations. Public embarrassment – in other words, political considerations – would serve as a brake on either branch’s inclination to abuse its role. As Alexander Hamilton explained in Federalist No. 77:

The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the senate; aggravated by the consideration of having counteracted the good intentions of the executive. If an ill appointment should be made, the executive for nominating, and the Senate for approving, would participate, though in different degrees, in opprobrium and disgrace.

In keeping with this design, our leaders unabashedly played politics with the nomination and confirmation process in the early days of the Republic. In November 1800, the Federalist Party lost control of both the White House and the Senate. One month before the election, Chief Justice Oliver Ellsworth had resigned for poor health, so there was a vacancy. Did the defeated President John Adams leave it to his successor Thomas Jefferson to appoint Ellsworth’s successor? Certainly not. Instead, he turned to his Secretary of State and fellow Federalist Party member, John Marshall, and asked him to assume the post. Marshall accepted, and on January 27, 1801, the lame-duck Federalist-controlled Senate confirmed his nomination.

John Marshall had been a delegate to the Virginia convention that ratified the Constitution, and had spoken about the judiciary article. He was intimately familiar with the text of the document, and with the framers’ intentions.  Significantly, he saw nothing wrong with a lame-duck President nominating him and sending the nomination to a lame-duck Senate for confirmation. Indeed, as Secretary of State, John Marshall found himself in the peculiar position of delivering the commission appointing him Chief Justice to himself!

Nor did President Jefferson hesitate to play politics with the judicial appointments. Marshall’s appointment was one of many. In his final days, President Adams appointed and the Senate confirmed 16 new federal judges and 42 new justices of the peace. Some of them had not received their commissions from the outgoing Secretary of State (and incoming Chief Justice) Marshall. When he came into office, President Jefferson did not bother to screen the appointees to see which were qualified “moderate” Federalists, and which were political hacks. He ordered the new Secretary of State, James Madison, to withhold the commissions from all of them.

The purely political machinations of John Adams, in appointing Federalist judges just as he was leaving the White House, and of Thomas Jefferson, who blocked every nomination he could, regardless of merit, as he was entering the White House, set the stage for the landmark Supreme Court decision of Marbury versus Madison. William Marbury, who had been appointed a justice of the peace, had not received his commission from Secretary of State Madison, so he sued for a writ of mandamus to force him to deliver it. He filed his suit in the Supreme Court because Congress had passed a law empowering that Court to issue such writs. Chief Justice Marshall faced a quandary. If he ruled against Marbury, he would be handing Jefferson a victory. If he ruled for Marbury, he would expose the Court as impotent, since Jefferson had made it clear that he was not going to let his Secretary of State deliver commissions to any Federalist appointees, writ or no writ.

Chief Justice Marshall solved the problem by an act of judicial jujitsu. On behalf of the Court, he ruled that Marbury was entitled to a writ of mandamus under the law passed by Congress, but the writ would not issue because that law was invalid. Congress, he said, had no authority to expand the power of the Supreme Court to issue writs because the Court’s powers were set by the Constitution. Any act of Congress that violated the Constitution was null and void. Thus was the power of judicial review born, a power that would allow the Court to review and invalidate the actions of the other two branches whenever those actions, as decided by the Court, violated the Constitution.

John Marshall would go on to serve as Chief Justice for 34 years, repeatedly thwarting the policies of Jefferson’s party (the progenitors of the modern Democratic Party), and keeping alive the spirit and principles of the Federalist Party long after its demise.  John Adams’ appointment of John Marshall may qualify as the most successful admixture of politics and the Appointments Clause in the nation’s history. But it certainly does not qualify as the last.

Politics has always played a role in the Appointments Clause. So the modern Republican Party need not shy away from incorporating political considerations into its strategy for dealing with the nomination of Judge Merrick Garland. It should just avoid incorporating dumb political considerations.