When President Barack Obama chose Federal Appellate Judge Merrick Garland, 63, for the Supreme Court of the United States, he passed over candidates of color and a highly requested African-American female nominee. However, Garland’s confirmation process is an obstacle course filled with political controversy. This nomination began in controversy with the sudden death of Justice Antonin Scalia, 79, on Feb. 13, while on a hunting trip in West Texas. Nominated by President Ronald Reagan, in 1986, Justice Scalia was a solid conservative voice on abortion, immigration, and affirmative action, voting against same-sex marriage, the Voting Rights Act, and the Affordable Care Act. Almost immediately, Sen. Mitch McConnell (R-Kent.) demanded that President Obama restrain from nominating anyone to fill the position because it is an election year. “This vacancy should not be filled until we have a new President,” McConnell, Republican majority leader, said in a statement. He and other Republicans claimed the seat should be filled by the next president.
President Obama has the power, with the advice and consent of the Senate, to nominate judges to the SCOTUS based on Article II, sec. 2 of the U.S. Constitution. That power is not limited to non-election years. However, there is also nothing in the Constitution requiring senators to vote on a nomination. “It is not the person,” said McConnell. “It’s the process.” Yet, within the Constitution, the people play no direct role in judicial nominations. But, McConnell said he believes, “The American people should have a voice in the selection of their next Supreme Court Justice.” Regarding Federal judges, the people’s voice is through their elected officials, alone. Justices sit for life to avoid political influence. Adding to the controversy is the so-called “Biden Rule.” On June 25, 1992, then Delaware Sen. Joe Biden (D), chair of the Judiciary Committee, stated that if a Supreme Court vacancy should arise he would advise the president to wait until after the November election to make a nomination. Although there was no vacancy back then, rancor arose after the infamous nomination of conservative Clarence Thomas who had been accused of sexual harassment by Anita Hill, a law professor at the University of Oklahoma.
When President Obama vetted several candidates he ruled out any with highly controversial cases, embarrassing disclosures or involvement in civil rights. As with most Justices, Garland is former partner in a corporate law firm and prosecutor. Famed civil rights attorney Thurgood Marshall and early NAACP board member Louis Brandeis are the rare Justices with a social justice pedigree.
Official notice of a nominee is sent to the Senate Judiciary Committee chaired by Sen. Chuck Grassley (R-Iowa). It has been suggested an older White male would be more palatable to Republicans. If the traditional Federal court nomination process is followed then Garland will visit the Senate even though Republicans there have vowed not to meet with him.
A subcommittee of the Judiciary Committee will investigate Garland and share that information with the committee. Afterward, the Judiciary Committee will decide whether to vote or wait. Since the committee is comprised of 11 Republicans and nine Democrats, the majority vote needed to hold a hearing on Garland’s nomination will be difficult.
If they vote to hold a hearing, it will be public and led by Grassley, in the Senate chambers, or stalled for months.
According to the committee’s website, “The Senate Judiciary Committee holds a hearing where the nominee provides testimony and responds to questions from members of the panel.
Traditionally, the Committee refers the nomination to the full Senate for consideration.”
Although Garland is a graduate of Harvard College and Harvard Law School and currently chief judge of the Appellate Court of D.C., his fitness for the Supreme Court will be questioned by members of the committee as well as his rulings on the Second Amendment, abortion, and the Affordable Care Act.
But, Garland is no stranger to political controversy. In 1995, he was nominated to the Appellate Court by President Bill Clinton.
Then, the Republican-held Judiciary Committee held a hearing but stalled the vote, requiring the newly re-elected President Clinton to re-nominate Garland. He was then confirmed 76-23.
Gloria J. Browne- Marshall is a professor of Constitutional Law at John Jay College in NYC. She is the legal correspondent for AANIC (African-American News & Information Consortium), a playwright and the author of her forthcoming book “The Voting Rights War.” @gbrownemarshall