Some of the Republican senators backing the planned obstruction of President Obama’s eventual nominee for the Supreme Court are now conceding that the tactic is pure politics with barely an ounce of historical precedent or constitutional principle to justify it.
“We are setting a precedent here today,” South Carolina’s Lindsey Graham said at a meeting of the Senate Judiciary Committee on Thursday [March 10]. In effect, Graham explained, the new rule would prevent filling a Supreme Court during the last year of a four- or eight-year presidency. “We're headed to changing the rules, probably in a permanent fashion,” he said.
Back in his home state, Wisconsin’s Ron Johnson was making clear that he viewed the supposed rule against considering Supreme Court nominations in the final year of a president’s term as applicable to this case only. Johnson replied to a radio interviewer’s question that it would be “a different situation” with Mitt Romney in the White House. “If a conservative president’s replacing a conservative justice,” Johnson explained, “there’s a little more accommodation to it.”
A day later, Utah’s Orrin Hatch said in effect that the Senate can do whatever it wants. “The Senate's job in each situation is to decide how best to exercise its advise and consent power,” Hatch said at a Federalist Society luncheon.
Even as Republicans were hardening their no-hearing, no-vote stance, Obama was sticking to standard operating procedure for Supreme Court vacancies. Taking a question from a reporter after his meeting with Canadian Prime Minister Justin Trudeau, Obama said he was reviewing possible candidates in hopes of “quickly” submitting a nomination so that the court could have its full complement of nine justices.
Obama promised that his nominee and he was careful never to use a gender-specific pronoun would be someone who “any reasonable person” would view as “eminently qualified.” The nominee, Obama elaborated, would be “an outstanding jurist” who appreciated “the necessary humility of a judge” but also “the critical role” courts play in protecting rights.
Reports leaking out of the vetting process identified six sitting federal judges as on a semi-short list of leading candidates. From their resumes, all six appeared to be qualified in terms of academic credentials, legal experience, and judicial service. Five of those on the list had been appointed by Obama within the last four years, but each had more experience on the federal bench than either David Souter or Clarence Thomas had before their appointments to the Supreme Court.
By week’s end, the three women on the list appeared to have been dropped and, according to Reuters’ Lawrence Hurley, the choice narrowed to three men serving on federal courts of appeals: Merrick Garland and Sri Srinivasan of the U.S. Court of Appeals for the District of Columbia Circuit and the Ninth Circuit’s Paul Watford. Out of the running were Patricia Millett of the D.C. Circuit, Jane Kelly of the Eighth Circuit, and Kentaji Brown Jackson, a district court judge in D.C.
Whatever their relative qualifications, Kelly and Brown Jackson had stood out on the list as former federal public defenders: Kelly in Iowa for nearly 20 years before her appointment in 2013 and Brown Jackson in D.C. from 2005 to 2007. None of the current justices has any significant experience in criminal defense, and no former public defender has ever been appointed to the court.
Kelly had been a tempting choice, it was thought, on the supposition that Senate Judiciary Committee Chairman Chuck Grassley would have a hard time denying a hearing to a fellow Iowan. At the committee meeting, however, Grassley snorted that he was not going to be influenced by that kind of “political ploy.”
Brown Jackson had political appeal as a diversity two-fer: an African American woman. But she was the youngest of the six age 45 and the lowest in the judicial ladder. No district court judge has been elevated straight to the Supreme Court since Edward Sanford in 1923. On the current court, only Sonia Sotomayor ever served as a trial judge; six other justices went straight to circuit courts and then to the high court. Elena Kagan had no prior judicial experience.
Diversity was seen as a plus for Srivinisan, who was born in India and stood to become the first Asian American justice, and for Watford, who could become the third African American justice after Thomas and Thurgood Marshall. Both are in their late 40s. Garland, the other candidate reportedly still in the running, is a white man who, according to NPR’s Nina Totenberg’s hard-nosed analysis, offered “no political pluses” for Obama. At age 63, he also offered a shorter legacy for a president interested in leaving a mark on the law for decades to come.
As with the Oscars, it would be an honor to be nominated, but the nominee may feel, like the man ridden out of town on a rail, that but for the honor it would have been better to walk. Texas’s senior Republican senator John Cornyn had suggested earlier that Obama’s nominee “will bear some resemblance to a piñata.”
Obama told reporters that he planned to do his job and expected that the Senate would do its job too. He added the hope that the nomination would not become “an extension of our polarized politics.” But it is, and with no truce in sight.