Senate Republicans should be kicking themselves for taking such a hard line on filling the U.S. Supreme Court vacancy left by the death of conservative Justice Antonin Scalia.
Immediately after Scalia’s death in February, Republicans proclaimed they would not give any nominee of President Barack Obama the dignity of a hearing, let alone a vote.
Their stark message: To hell with the Constitution, separation of powers and any semblance of cooperation.
Properly undeterred, Obama nominated Merrick Garland, a highly qualified, moderate judge on the U.S. Court of Appeals for the District of Columbia and former prosecutor.
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At 63 years old, he’s also no young liberal firebrand likely to serve 30, 40 or more years. Garland was the best the GOP could possibly have hoped for from a Democratic president.
The hissy fits continued anyway. Republican senators, including Pat Roberts and Jerry Moran of Kansas and Roy Blunt of Missouri, still refuse to act.
But that position is a lot less attractive now, with Donald Trump the presumptive Republican presidential nominee and Hillary Clinton on the Democratic side.
Trump is a total wild card who could nominate anyone if he wins. On Wednesday, he released a list of 11 possible nominees, in part to address Republicans’ concerns that if elected, he might fail to name a conservative jurist.
Clinton or Sanders would likely choose a younger, more liberal judge. And while it’s unlikely, Democrats also could seize control of the Senate, meaning a new appointment could also increase the court’s diversity, unlike the white, male Garland.
Meanwhile, without a ninth justice, the risk of 4-4 ties in important Supreme Court cases increases.
Already the court deadlocked on a closely watched union case, leaving the matter unresolved.
And earlier this week, a reportedly divided court failed to reach a decision on a controversial contraceptive mandate included in the Affordable Care Act. The justices sent the case back to lower courts, hoping for a compromise.
“It seems pretty clear that this is a compromise born out of an eight-justice court, where the justices avoid saying anything on the merits and try to make the case go away,” said Steve Vladeck, a professor of law at American University Washington College of Law.
That’s unfortunate and a bad way for a democratic system based on the rule of law to operate. Want an even bigger horror story? A contested 2016 presidential election like the one in 2000 could be disastrous.
In opposing Garland, Republicans initially focused on the specious argument that the “people” who elect the next president should be rewarded with the choice, not those who elected the current president.
Public opinion is shifting in favor of a Senate hearing. Twitter is full of #doyourjob jabs at GOP senators. And a majority of Americans now favors holding a hearing on Garland, according to recent polls.
But Republican leaders continue to thumb their noses at Obama, Garland, the public and the Constitution.
Roberts, Moran and Blunt should step up, be leaders of their frazzled party and call for a vote. Instead they toe the misguided GOP line.
Now is the time to show respect for the Constitution and the public by holding a hearing and a vote. We find it difficult to imagine how our states’ Republican senators could honestly object to Garland as not qualified to serve.
If Republicans don’t find Garland worthy, let them go on record with a vote against him. Voters deserve to know where their elected officials stand and why. Only a vote up or down offers that transparency and honesty.