- The Washington Times - Wednesday, March 16, 2016

President Obama on Wednesday nominated longtime federal appeals Judge Merrick Garland to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia, amid signs that Senate Republicans who are blocking the nomination might allow a lame-duck confirmation vote after the November election if another Democrat wins the presidency.

Introducing Judge Garland in a ceremony at the White House Rose Garden, Mr. Obama said the judge “is uniquely prepared to serve immediately” on the high court. He praised Judge Garland as “one of America’s sharpest legal minds,” and insisted that the Senate give him a confirmation vote quickly.

“I have fulfilled my constitutional duty,” Mr. Obama said. “Now it’s time for the Senate to do theirs. I hope they’re fair.”

A tearful Judge Garland, 63, said the nomination was “the greatest honor of my life.” He said judges must be “faithful to the Constitution and to the statutes passed by Congress,” and must “follow the law, not make it.”

“Trust that justice will be done in our courts without prejudice or partisanship is what, in a large part, distinguishes this country from others,” he said.

Even before Mr. Obama selected Judge Garland, Senate Republicans had vowed not to hold hearings or a vote on the nominee, saying an election year is the wrong time to fill such an important position. Senate Majority Leader Mitch McConnell of Kentucky and Judiciary Committee Chairman Chuck Grassley of Iowa contend that voters should have a say by electing a new president to make the nomination next year.

SEE ALSO: Merrick Garland has ‘very liberal view of gun rights’

Mr. McConnell said on the Senate floor Wednesday that Mr. Obama “made this nomination not with the intent of seeing the nominee confirmed, but in order to politicize it for purposes of the election.”

“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction,” Mr. McConnell said.

But there were reports that Senate Republicans have held “back channel” communications with the White House in favor of Judge Garland’s nomination, with an eye toward holding a confirmation vote in the lame-duck session if Democrat Hillary Clinton or Sen. Bernard Sanders wins the presidency. Presumably, a nominee selected by either of them would be more liberal than Judge Garland, who has garnered respect in both parties on Capitol Hill.

Post-election hearings

Sen. Orrin G. Hatch, Utah Republican and a senior member of the Judiciary Committee, said he would be open to holding post-election hearings on Judge Garland in December.

“It’s the toxicity of this environment,” Mr. Hatch said. “I’m tired of the Supreme Court being politicized. I think we’ve diminished the court over the years. The only way to get out of that is to get out of this toxic environment and have the matter decided then.”

SEE ALSO: Obama Supreme Court candidates Paul Watford, Sri Srinivasan, Merrick Garland scrutinized

Mr. Hatch said he would not commit to being for or against hearings on Judge Garland in December.

“I’m open to it; that doesn’t mean that I’m for it,” he said.

But with at least some Senate Republicans open to considering the Garland nomination in the lame-duck session, GOP lawmakers face the prospect of a fight with their conservative base. Conservative groups opposing the nomination are characterizing Judge Garland as a liberal whose confirmation would shift the balance of the nine-member Court, especially as a replacement for the conservative stalwart Scalia, and provide a fifth vote for a liberal agenda.

American Conservative Union Chairman Matt Schlapp said Mr. Obama “has shown his blatant disregard for the U.S. Constitution by nominating a person to replace Justice Scalia who ignores the fundamental premise that our government is to be limited and citizen-based.”

“As a federal appeals court judge, Merrick Garland has tried to restrict individual rights, and he has worked to expand the power of the federal government over Americans’ lives,” Mr. Schlapp said. “If it were up to Judge Garland, D.C. citizens would have been stripped of their Second Amendment rights and the EPA would have virtually unlimited control over the private property of Americans. The Senate should continue to stand strong and prevent a lame-duck president from remaking the court for decades to come.”

Ed Whelan, president of the Ethics and Public Policy Center and a former law clerk to Scalia, said Judge Garland is “a very decent fellow” who nevertheless “would move the Court markedly to the left.”

But if Mrs. Clinton or Mr. Sanders were to win the presidency, Mr. Whelan said, “The Senate might well decide they should go ahead and act on the Garland nomination.”

Mrs. Clinton said Judge Garland has “considerable experience on the bench and in public service, a brilliant legal mind and a long history of bipartisan support and admiration.” He said the Senate should hold a confirmation vote quickly.

Some liberals disagreed, saying they were disappointed by the selection of Judge Garland, and some had no qualms about saying their disappointment owed to his status as a white male.

“It’s deeply disappointing that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court, and instead put forward a nominee seemingly designed to appease intransigent Republicans rather than inspire the grass roots he’ll need to get that nominee through the Senate gauntlet,” said Charles Chamberlain, executive director of Democracy for America, a liberal grass-roots group. “We believe that Senate Republicans need to do their job and give Judge Garland the fair hearing any Supreme Court nominee deserves, but this selection will make it harder to excite grass-roots progressive about the slog ahead.”

Mr. Obama, who as a senator tried to filibuster the nomination of Republican appointee Samuel Anthony Alito Jr. to the Supreme Court, called on Republican senators not to “play politics” with his nominee.

“I know that Republicans will point to Democrats who have made it hard for Republican presidents to get their nominees confirmed. And they’re not wrong about that.”

But he said, in each of those cases, “Democrats ultimately confirmed a nominee put forward by a Republican president.”

GOP intransigence

Judge Garland began making phone calls to senators immediately after his nomination announcement, and will visit Capitol Hill Thursday to meet with senators individually. Several Republican lawmakers have said they’ll meet with him as a courtesy.

The nomination intensified partisan efforts on the right and left, with liberals trying to pressure Republican senators who are up for re-election this year to allow a confirmation vote, and conservatives urging GOP senators to hold fast on their pledge not to hold hearings.

Sen. Mike Lee, Utah Republican and a member of the Judiciary Committee, reiterated Wednesday that the GOP won’t consider the nominee.

“In light of the contentious presidential election already well underway, my colleagues and I on the Judiciary Committee have already given our advice and consent on this issue: we will not have any hearings or votes on President Obama’s pick,” Mr. Lee said. “Any meeting with any nominee put forward by President Obama would only be a waste of the Senate’s time. The Court has very ably dealt with temporary absences in the past and will do so again now.”

“Anything less is entirely unacceptable,” he said in a statement.

Sen. Ted Cruz of Texas, who is seeking the GOP nomination for president, criticized the Garland nomination as the sort of “deal” that rival Donald Trump would make as president.

“We cannot afford to lose the Supreme Court for generations to come by nominating or confirming someone that a dealmaker like Donald Trump would support,” the Cruz campaign said in a statement. “Washington dealmakers cannot be trusted with such crucial lifetime appointments.”

Some Republicans, however, from former Bush nominee Miguel Estrada to former special prosecutor Ken Starr, praised Judge Garland. Mr. Starr, whose probe led to the impeachment of President Bill Clinton in 1998, called the nomination “a very wise choice.”

2nd Amendment record scrutinized

The nomination of Judge Garland is also likely to become a proxy war over gun owners’ rights. Conservative activists say the judge has a history of rulings in favor of stricter gun control.

The conservative Judicial Crisis Network, which plans to spend at least $2 million on an advertising campaign to oppose the nominee, said Judge Garland “has a very liberal view of gun rights.”

JCN chief counsel Carrie Severino said in a blog post that Judge Garland’s record on the bench since 1997 “leads to the conclusion that he would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.”

In 2007 a three-judge panel of the D.C. Circuit ruled against the District’s handgun ban in Parker v. District of Columbia (the case that eventually became District of Columbia v. Heller when it went before the Supreme Court). The D.C. government asked for a rehearing of the case before all 10 judges of the appeals court.

Six judges voted not to rehear the case, but four, including Judge Merrick, voted for a rehearing. Conservatives say that’s presumably because he disagreed with the three-judge panel that had ruled to overturn the handgun ban.

Sierra Club Executive Director Michael Brune said Judge Garland “is exactly the kind of fair, evenhanded and thoughtful jurist who deserves the immediate consideration of the Senate, and not more of the obstruction Senate Republicans have promised.”

The president’s final selection came down to Judge Garland and his colleague on the appeals court, Judge Sri Srinivasan, 49, who would have been the first Asian-American and first Hindu Supreme Court justice. Judge Srinivasan was born in India and grew up in Kansas, the son of a mathematics professor. Mr. Obama appointed him to the appeals court in 2013, and the Senate confirmed him in a 97-0 vote.

Judge Garland was appointed to the bench by Democratic President Bill Clinton in 1997, winning Senate confirmation in a 76-23 vote. Among the Republicans who voted against his nomination at the time were Mr. McConnell and Mr. Grassley. Current Republican senators who voted for Judge Garland back then were Mr. Hatch, Daniel Coats of Indiana, Thad Cochran of Mississippi, Susan M. Collins of Maine, James M. Inhofe of Oklahoma and Pat Roberts of Kansas.

Mr. Obama had considered Judge Garland for the high court in 2009 but instead chose Sonia Sotomayor.

A native of Chicago and graduate of Harvard College and Harvard Law School, Judge Garland clerked for two appointees of Republican President Dwight D. Eisenhower — the liberal Supreme Court Justice William Brennan Jr., who authored the Roe v. Wade decision legalizing abortion, and Judge Henry J. Friendly, for whom current Chief Justice John G. Roberts Jr. also clerked.

After becoming an assistant U.S. attorney in 1988, Judge Garland worked on the drug case against then-D.C. Mayor Marion Barry. As a Justice Department lawyer in the mid-1990s, he supervised the investigation of the Oklahoma City bombing, a case which made his reputation.

If confirmed, Judge Garland would become the fourth Jewish justice, along with five Catholics on the high court. There hasn’t been a Protestant on the bench since 2010, when Justice John Paul Stevens retired.

• Dave Boyer can be reached at dboyer@washingtontimes.com.

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