Will the Confirmation Process Ever Get Beyond Politics?

As all the world knows by now, Senate Majority Leader Mitch McConnell will not let the Senate consider any nominee for the Supreme Court until "the American people" have voiced their opinion on the matter by choosing a new president.

I have news for Senator McConnell and his fellow Republican senators. When the American people re-elected Barack Obama as president in 2012, they authorized him to nominate anyone he chose to fill a vacancy on the court -- right up to his final day in office. The Constitution nowhere limits this power to the first three years of a president's term. If it had, President John Adams could never have appointed John Marshall in the very last weeks of his term, after Jefferson had been elected to succeed him, and we would have lost one of the finest justices the court ever had. Also, in stating that nominations to the court must have the "advice and consent" of the Senate, the Constitution gives senators a job. It does not give them the right to do nothing at all about presidential nominations.

For this reason, all Republican Senators -- above all McConnell -- should ponder what Chief Justice John Roberts declared just ten days before the death of Antonin Scalia. Even though Roberts is now considered a traitor to conservatism for upholding the Affordable Care Act, he was appointed by President George W. Bush and can hardly be classified as liberal or part of the left wing of the court. At worst he is imperfectly faithful to conservative orthodoxy. But what he said is perfectly faithful to the principle of an independent judiciary: a court answerable not to political pressure but only to its own collective judgment of what the Constitution allows or forbids.

Noting that all three recent additions to the court -- two of them nominated by President Obama--have been "extremely well qualified" for it, Roberts lamented that all three were confirmed "strictly on party lines," rather than judged by their qualifications -- meaning, I assume, their experience of the law, their understanding of the Constitution, and their capacity to judge.

In this light, McConnell's refusal to consider President Obama's nominee exemplifies political partisanship on steroids. The sole reason for his obstruction has nothing to do with the superb qualifications of Judge Merrick Garland, nothing to do with the voice of "the American people," and everything to do with political calculation. Fixated on the conservative Republican base, McConnell is betting that he and his fellow GOP senators have more to gain than to lose by holding out as long as they can against any nomination that might tilt the court leftward.

Does this make any sense? Quite aside from his political perversion of the confirmation process, quite aside from his abdication of senatorial responsibility, Senator McConnell fails to understand that once a nominee is confirmed, he or she is no longer owned by any political party, which is why judges like Roberts himself sometimes refuse to play the parts initially assigned to them. When David Souter joined the court in 1990 after being nominated by the first President Bush, everyone thought he would join its conservatives, but he ended up voting with its liberals nearly all of the time. On the other hand, if I were a Democratic Senator considering Judge Garland for the court, I would not be happy with his 2010 vote to allow unlimited contributions to Super-Pacs , thus upholding the Supreme Court decision in the Citizens United case. But in spite of that vote, I could hardly contest his qualifications.

In 1997, when President Bill Clinton nominated Merrick Garland for the U.S. Court of Appeals in the District of Columbia, he was not only confirmed but highly praised by a number of Republican senators including Orrin Hatch of Utah, who declared, "I believe Mr. Garland is a fine nominee. I know him personally, I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the court."

Unless anything has damaged those qualifications during Garland's years on the DC court, what besides naked political partisanship can explain or justify blocking his path to the Supreme Court? And if the Republicans succeed in blocking a vote on him to the very end of President Obama's term, will a senate controlled by one party ever again confirm anyone nominated by a president who belongs to the other?