01/03/2017 08:42 pm ET | Updated Jan 04, 2017

Merrick Garland's Supreme Court Nomination Just Died With The Old Congress

The gamble by Senate Republicans paid off.

Merrick Garland waited 293 days.

His nomination to the U.S. Supreme Court, which sat gathering dust in the Senate for that long, expired at noon Tuesday — just as the 115th Congress was sworn in on the first day of its legislative session.

As he said he would on Feb. 13, the day Justice Antonin Scalia died, Senate Majority Leader Mitch McConnell (R-Ky.) refused to consider a nominee for a vacancy that arose in an election year. And most Republicans, including Chuck Grassley (R-Iowa), the Senate Judiciary Committee chairman, played along.

The tactic worked, and now President-elect Donald Trump will get to pick Scalia’s replacement. With help from his inner circle, he’s already narrowing down his choices.

During a holiday celebration last month, President Barack Obama acknowledged Garland for his distinguished service as the chief judge of the U.S. Court of Appeals for the District of Columbia, the nation’s second-most powerful federal court — all but confirming that it was the end of the road for his nominee.

Mark Wilson via Getty Images
Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia, waited for 293 days before his U.S. Supreme Court nomination died without any action in the Senate.

Garland, for his part, put himself back on the calendar of the D.C. Circuit — a strong signal that he’d rather resume his lifetime appointment to that court than continue dragging on this losing fight.

Some still held fast to the hope, however remote, that Obama would invoke his recess-appointment power and put Garland on the Supreme Court for up to a year. But that shortsighted play would’ve created a vacancy in the D.C. Circuit, which now has a firm Democratic-appointed majority that will come in handy during the Trump years.

Still, White House Press Secretary Josh Earnest lamented Tuesday that Garland never got a chance to make his case to the American public and the Senate on why he had the credentials to serve on the nation’s highest court, which has remained short-handed since Scalia’s death.

“Merrick Garland is a patriot, and he deserved far better treatment than he received from Republicans in the United States Senate,” Earnest said. “But because he’s the bigger man, he’s going to continue to serve this country with honor and distinction at the United States Circuit Court of Appeals.”

He added that the inaction on Garland could create complications for Trump’s own nominees — solely by virtue of the party of the nominating president.

Merrick Garland is a patriot, and he deserved far better treatment than he received from Republicans in the United States Senate. White House Press Secretary Josh Earnest

“Republican senators blocked an eminently qualified Supreme Court nominee, whose qualifications were not in question, simply because he was nominated by a Democratic president,” Earnest said. “How then can Republicans go to Democratic senators and say that they should support nominees put forward by a Republican president?”

In a lengthy statement from the Senate floor last month, Sen. Patrick Leahy (D-Vt.), the ranking member of the Senate Judiciary Committee, said he’d never seen anything like the Garland blockade in his more than four decades in Congress.

“Republicans rolled the dice this year, subjecting the Supreme Court and the American people to their purely political gamble,” Leahy said. “They will tell us they have won. But there is no victor — for their partisan game, this body, the Supreme Court and the American people all suffered.”

Obama argued as much in a column for The Huffington Post in October. “This cannot be the new normal,” he said of the Garland gridlock, which is now the longest ever for a Supreme Court nominee.

The last time the White House tweeted about the judge — from an account created specifically to promote the nominee — was Nov. 8. That’s the same day We Need Nine, a progressive campaign to get the nominee confirmed, went dormant.


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