Merrick Garland was a centrist appointment by Obama - so why is he causing such a split?

Mitch McConnell, the Senate majority leader, is playing 'lousy politics' over the new  Supreme Court Justice

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The Independent Online

Republican excesses know few bounds. And I’m not talking about the likelihood Donald Trump will be their nominee in November’s presidential election. In fact, the Manhattan property tycoon is staging a hostile takeover of the party, a calamity that Republicans have brought entirely upon themselves.

Just one Senator and a tiny handful of Congressmen have come out in favour of Trump. The rest just wish they could wake up and discover that the whole nightmare had been precisely that. No, I’m talking about a big reason why Republicans are responsible for the predicament in which they find themselves – the political obstructionism that has touched an outrageous new low with the refusal of Mitch McConnell, the Senate majority leader, even to consider president’s Obama’s nomination of Merrick Garland to be a Supreme Court Justice.

Merrick Garland would replace the flamboyant, arch-conservative Antonin Scalia who died in mid-February. Obama could have picked an out-and-out liberal to fill Scalia’s seat on the bench, who would have tilted the ideological balance of the Court to the left and ended a quarter century of conservative dominance. Instead the president chose the unassuming Garland, greatly admired by his peers, and who heads the federal appeals court for the District of Columbia, generally regarded as the second most important jurisdiction in the land. Not that long ago, many Republican Senators spoke highly of him. Although he is to the left of Scalia, some liberal lobby groups oppose him on the grounds he’s too conservative.

Yet McConnell will have nothing to do with him, curtly informing the nominee not to waste his time by making the traditional courtesy calls on Capitol Hill – and this despite the overwhelming belief of ordinary Americans that the Senate should do what it is constitutionally obliged to do and take up Garland’s nomination. If the Republican majority votes him down, then so be it.

The post should not be filled until after the presidential election, maintains McConnell, to let “the people have their say” (as if the average American greatly cares about who sits on the Court). In fact, of course, McConnell wants to preserve its conservative majority - even if that means limiting its members to eight for the best part of a year, guaranteeing a 4-4 deadlock on many key cases. In other words, McConnell’s playing politics, but lousy politics.

Now Obama is not without some blame for the systemic breakdown. Despite winning the ultimate political prize, he gives every impression of hating politics. A supremely rational man, he makes the mistake of believing that others are rational as well. He has never hidden his scorn for Congress, and made little effort to establish the sort of informal relationships on Capitol Hill, both within his own party and across the aisle, that in happier times made Washington work. That said, Garland is the least contentious and best qualified nominee the president could have could have come up with.

Once upon a time, before Congress turned into a hyper-partisan swamp, Supreme Court nominations were a shoo-in, as long as a candidate was up to scratch. In 1986, Scalia was voted in 98-0 by the 100-member Senate. Seven years later Ruth Bader Ginsburg, who struck up a close friendship with Scalia but was in fact his ideological opposite, was confirmed 96-3.

Trouble began in earnest in 1991, the last time the ideological balance of the Supreme Court changed. That year Thurgood Marshall, the first black Justice and a hero of the civil rights movement, retired. Cynically, President George H.W. Bush picked another African-American to succeed him – except that Clarence Thomas was as conservative as Marshall was liberal.

The senate hearings were a bloodbath. Thomas was hit with lurid charges of sexual harrassment by a former colleague Anita Hill. He defended himself by maintaining his treatment was “the high-tech lynching of an uppity nigger.” In the end, the Democrat-controlled Senate did confirm him, but by a humiliatingly thin margin of 52-48.

Since then, as the Congress has increasingly failed to do its job of passing laws, the Court, once a remote legal arbiter, has assumed some of the former’s powers almost by default. Unsuprisingly, Supreme Court nominations have increasingly become pitched battles. Substantial minorities have voted against the last three justices to be confirmed – Samuel Alito, Sonia Sotomayor and Elena Kagan – on purely ideological grounds.

McConnell’s tactics, in defiance of the constitution as well as the wishes of most Americans, reflect a determination to block everything Obama proposes. But it is merely the predictable next step in a process whose logical outcome is that a president’s nominee to the Court will be confirmed only if the Senate is controlled by his party. Which brings me to the second reason why McConnell is playing lousy politics.

All is predicated upon a Republican recapture of the White House, which probably means a Trump presidency. (A matter of delicious speculation, incidentally: who would the reality TV mogul choose? His obedient friend Chris Christie? Or Sarah Palin?) In fact, every poll shows Hillary Clinton beating Trump by 10 points or so in a November match-up. Were Bernie Sanders to be the nominee, he would win by an even wider margin, according to those same polls.

Worse still, the strong likelihood is that Trump drags a clutch of Senate Republicans to defeat, in which case control of the chamber would revert to the Demcrats, and McConnell’s manoeuvrings would have spectacularly backfired. Any Clinton or Sanders nominee would surely be well to the left of Merrick Garland.

No wonder some vulnerable Republicans, facing strong Democratic challengers in November, are ready to meet Garland and urge hearings now. Others, fearing a Clinton victory, say they should take place after the election, but before a new Senate is sworn in in January. That assumes saint-like patience on the part of Garland: that he does not decide he has better things to do than wait out McConnell’s whims. If so – and just as with the emergence of Donald Trump – Republicans would have only themselves to blame.