Nomination expires for Obama Supreme Court appointee Merrick Garland

"It was stolen from Barack Obama," The New York Times editorial board said of the still-empty Supreme Court seat.
By Doug G. Ware  |  Jan. 3, 2017 at 4:25 PM
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WASHINGTON, Jan. 3 (UPI) -- Merrick B. Garland on Tuesday joined a small but distinguished fraternity of prominent U.S. judicial figures appointed to the highest court in the land, only to see the opportunity unceremoniously tossed onto the ash heap of history.

President Barack Obama's nomination of Garland, chief judge of the U.S. Court of Appeals in Washington, D.C., expired at noon Tuesday when the 114th Congress formally adjourned.

Garland's nomination lasted for a total of 293 days -- the longest period in Supreme Court history, by far -- without ever getting a confirmation hearing, or a hearing of any kind, from Senate Republicans. Only three other nominations lasted for longer than 100 days -- Louis Brandeis, confirmed in 1916 after 125 days; Robert Bork, rejected in 1987 after 114; and Potter Stewart, confirmed in 1959 after 108.

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Considered by most a moderate liberal judge appointed by the president to serve as an associate justice of the U.S. Supreme Court after the death of Antonin Scalia in February, Garland will now remain on the federal appellate bench in Washington.

All nominees to the high court must be approved by the Senate, but Republicans in the upper chamber never even gave Garland that chance. For nearly a year, they argued that U.S. voters should decide the next justice by virtue of the candidate they chose to succeed Obama. With Donald Trump being that choice -- the electoral college's, anyway -- the entire ordeal has been one historical disaster for Democrats.

While Garland could potentially be renominated by Trump, that possibility seems remote at best and impossible at worst.

"I've been clear throughout that the next president would name the next Supreme Court justice," a spokesman for Senate Majority Leader Mitch McConnell, R-Ky., said Tuesday. "Now, the president who won the election will make the nomination, and the Senate the American people just re-elected will consider that nomination."

Critics have argued that the GOP's reason for denying Garland the opportunity amounts to nothing more than partisan posturing aimed at keeping a Democratically-appointed justice off the bench of the country's highest court.

"What Senate Republicans did to Judge Garland, the Supreme Court, and the Constitution was appalling," Senate Minority Leader Charles Schumer, D-N.Y., said Tuesday. "That he did not even get so much as a hearing will be a stain on the legacy of the Republican Senate."

Last summer, Obama said Senate Republicans were being derelict in their duty by stalling Garland's nomination.

It's not yet clear who Trump will nominate to replace Scalia to fill out the ninth seat on the Supreme Court, which has operated with just eight justices for nearly a full calendar year. The vacancy, consequently, has resulted in some deadlocked issues before the court.

During his campaign, Trump did issue a short list of potential candidates -- including Sen. Mike Lee, R-Utah, who previously clerked for Justice Samuel Alito, and Michigan Supreme Court Chief Justice Robert Young.

"The 2nd Amendment is under siege. We need SCOTUS judges who will uphold the US Constitution," Trump said in October.

With the expiration of his appointment, Garland became the United States' 29th failed Supreme Court nominee. The last appointee to fail having never gotten a Senate hearing was William C. Micou, appointed by President Millard Fillmore, in 1853.

Garland, 64, is the first failed Supreme Court nominee since Harriet Miers in 2005, and is just the second unsuccessful candidate in the last 30 years.

Last month, The New York Times Editorial Board issued a scathing take on Senate Republicans' inaction regarding Garland's candidacy, calling the soon-to-be filled vacancy a "stolen Supreme Court seat" for Republicans.

"Americans must remember one thing above all: The person who gets confirmed will sit in a stolen seat," the board wrote Dec. 24, laying most blame at the feet of McConnell and Senate Judiciary Committee Chair Charles Grassley, of Iowa.

"It was stolen from Barack Obama ... by top Senate Republicans, who broke with longstanding tradition and refused to consider any nominee Mr. Obama might send them, because they wanted to preserve the court's conservative majority."

The Times, long critical of the stalled nomination, called for Trump to renominate Garland as a unity measure and a means to avoid opening a Pandora's box in the future. It also noted that just two Senate Republicans supported hearings or a vote for Garland -- Sens. Susan Collins of Maine and Mark Kirk of Illinois -- and dismissed out of hand the GOP's claimed reason for stalling the appointment.

"The Republican party line -- that it was an election year, so the American people should have a 'voice' in the selection of the next justice -- was a patent lie. The people spoke when they re-elected Mr. Obama in 2012," the board wrote.

"If Republicans could justify an election-year blockade, what's to stop Democrats in the future from doing the same? For that matter, why should the party controlling the Senate ever allow a president of the opposing party to choose a justice?" the panel continued. "At the very least, Mr. Trump could follow President Obama's example and pick a centrist. ... That would be an appropriate gesture from a man who lost the popular vote by more than 2.8 million votes and will enter office with the lowest approval ratings in recent history.

"There's little hope that they will come to their senses now, but they and Mr. Trump have the power, and the obligation, to fix the mess they created."

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