Merrick Garland, President Obama’s Supreme Court nominee to fill the vacant seat left by the unexpected death of Justice Antonin Scalia, is poised to make history for the longest wait for a confirmation.
On Tuesday, Garland will pass up the previous record holder, Louis Brandeis. Precisely 100 years ago, Brandeis waited 125 days for his confirmation before going on to become one of the greatest Supreme Court justices of all time. He was also the first Jewish justice to be appointed to the high court. Garland, who was nominated in March, has now been waiting as long as Brandeis did and from the looks of it, he will continue to wait.
The Senate is currently on summer recess until Labor Day and there is no sign that they will be any more inclined to do their jobs and give Garland an up or down vote when they return.
Brandi Hoffine, a White House spokeswoman, said the fact that Garland is about to make history should be enough to make senate Republicans take a hard look at their position and reconsider.
This should be a sobering thought for Senate Republicans, who are on week one of their seven-week vacation. We certainly hope they’ll return ready to fulfill their constitutional responsibility by giving Chief Judge Garland a hearing and an up or down vote.
In an op-ed published by the Wall Street Journal on Sunday, Obama wrote that by playing this ridiculous game, they have reduced the judiciary to nothing more than another political bargaining chip.
If Republicans in the Senate refuse even to consider a nominee in the hopes of running out the clock until they can elect a president from their own party, so that he can nominate his own justice to the Supreme Court, then they will effectively nullify the ability of any president from the opposing party to make an appointment to the nation’s highest court,” the president wrote.
So what can we learn from the battle that was fought all those years ago? According to Jeffrey Rosen, author of the newly released Louis D. Brandeis: American Prophet, the two situations have little common.
“The opposition to Brandeis reflected two factors: anti-Semitism and the perception that Brandeis was a radical because of his opposition to what he called the ‘curse of bigness’ in business and government,” said Rosen, who also the head of the National Constitution Center in Philadelphia. “The delay in Garland’s confirmation reflects our more polarized Senate confirmation process.”
It is this polarization that has lead to the staunch obstructionism of senate Republicans. Before Scalia’s body had even had a chance to get cold, Senate majority leader Mitch McConnell (R-Ky.) declared that under no circumstances would they consider anyone nominated by
the black guy President Obama.
One similarity is that the Brandeis nomination battle also took place during an election year. His consideration by the Senate made history as well since up until then Senate Judiciary Committee hearings had not been public and were held behind closed doors.
Brandeis was not allowed to testify at his own hearing, but similar to Garland today, others spoke out on his behalf.
“Brandeis was graceful throughout the arduous hearings,” said Rosen. “He never responded openly to the anti-Semitism and opposition of his detractors, although he did telegraph responses to particular criticisms so his supporters could respond in real time.”
Don Stewart, a McConnell spokesman, made it clear that he couldn’t care less about Garland making history with his wait. “You seem surprised,” he said in an email, which included little more than McConnell’s original statement following Scalia’s death, verbatim.
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
Featured image via Chip Somodevilla/Getty Images