A SCOTUS Nominee Requiem: It’s Time to Bury Garland Nomination, Move On

By Lynn Wardle | November 17, 2016 | 2:59pm EST
President Barack Obama shakes hands with Judge Merrick Garland. (AP Photo/Pablo Martinez Monsivais)

By all accounts (that is to say, according to the national media) Merrick Garland is a decent, fine, capable, intelligent, admirable person.  He has a fine, even impressive, judicial resume.  His nomination by President Barack Obama to the Supreme Court of the United States could reasonably be called a “moderate” nomination – especially from a President who has been known for some other-than-moderate executive actions. 

Yet, by all accounts (again, according to most media commentators), it is very unlikely that Merrick Garland will ever sit on the Supreme Court.  His failure to get to the Court will not be because of any failing or misconduct or bad judicial opinion of his.  Rather, Judge Garland has been the victim of circumstances beyond his control.  Ironically, Judge Merrick Garland has been the victim of the rude, disrespectful behavior of the very person who nominated him for the Supreme Court – President Barack Obama. 

President Obama disrespected Justice Antonin Scalia and was very rude (discreetly, of course) regarding his sudden death earlier this year.  President Obama ignored (i.e., chose not to attend) the funeral for Justice Scalia. He failed to demonstrate the minimal courtesy of just showing up to pay respects to a man who had given decades of his life in service to his nation. 

Since Scalia was one of nine justices at the top of the judicial branch of the United States, it was incumbent upon the President to attend Justice Scalia’s funeral as a matter of decent respect for of that co-ordinate branch of our federal government and for the members of the Supreme Court.  Yet Obama turned his back on Justice Scalia and simply skipped his funeral. 

The funeral for Justice Scalia was held in Washington, D.C., within a stone’s throw of the White House, so travel distance was not a factor in the President’s missing the funeral of Justice Scalia.  President Obama simply chose to ignore the funeral of Justice Scalia – a man whose judicial views the President did not like. 

However, President Obama claimed the right to nominate someone to replace Justice Scalia and to fill his seat on the Supreme Court.  That nominee is Merrick Garland.

Somehow, it seems just and fitting that since President Obama was unwilling to show minimal respect to the passing of Justice Scalia that he be denied the right to have his preferred nominee, Judge Merrick Garland, confirmed to fill that vacancy on the high court. And it appears that that is exactly how this strange scenario is playing out. 

President Obama’s nomination of Merrick Garrick to the Supreme Court has been languishing for nine months in the Senate.  It has been on hold for much longer than any nomination to the Supreme Court in the history of our nation. 

Dahlia Lithwick has published a column asserting that because of the failure to act on the Garland nomination to the Court, “Republicans Stole the Supreme Court” and rallying “Democrats, don’t let them get away with it.”

Ms. Lithwick has it wrong.  The Republicans in the Senate did not steal the Court.  Rather, President Obama forfeited his opportunity to reshape the Court.  He lost that privilege because of his arrogant disrespect of Justice Scalia and for his remarkable career of public judicial service. 

His imperial attitude has cost President Obama good will and has diminished the office of the President of the United States.  Our outgoing President has long had difficulty dealing respectfully with persons who disagree with him.  There are some costs associated with the President’s “holier-than-thou” attitude of condescension and disrespect.  One wonders how much some citizens’ discomfort with that presidential superiority attitude might have impacted the election contest to succeed him.   

Now it is time to bury the nomination of Judge Garland to the Supreme Court.  It is time to put that point of unfinished business and festering contention behind us.

It is not a matter of letting the Republicans steal the Supreme Court as Ms. Lithwick contends.  Rather, it is a matter of letting go of the past, of acknowledging the terminal status of a nomination that the current President tragically, arrogantly, unnecessarily forfeited.  It is now time to move beyond the old nomination, the old conflicts, and to move into a new era.  

Our nation gets a fresh start opportunity every four years.  One might be excused for saying now that we need that fresh start especially when it comes to languishing nominations like that of decent, respectable Judge Merrick Garland.  It is time to bury that nomination.  It is time to move on.

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.


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