As of Tuesday, President Barack Obama’s choice to replace the late Justice Antonin Scalia has matched the record for the high court nominee who has waited the longest to be confirmed for the job.
The milestone couldn’t be more symbolic. Garland, who was nominated in March, is poised to surpass Louis Brandeis, one of the greatest justices to ever live, who exactly 100 years ago endured the largest gap between nomination and confirmation of any Supreme Court nominee: 125 days.
Garland has been patiently waiting that long for a Senate hearing and a vote. And by all accounts, he is sure to keep on waiting. Congress is on summer recess until Labor Day and Republican leadership in the Senate ― all but set on the idea to have Donald Trump fill this and other Supreme Court vacancies ― has shown no intention of even granting Garland a hearing.
A White House official said Garland’s new place in history should spur those who have opposed him to reconsider their position.
“This should be a sobering thought for Senate Republicans, who are on week one of their seven-week vacation,” spokeswoman Brandi Hoffine told The Huffington Post. “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.”
Obama wrote in a Wall Street Journal op-ed published Sunday that this gamesmanship turns the judiciary into just 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.
As for what lessons the public can learn from the confirmation battle that raged a century ago, Jeffrey Rosen, author of the just-released Louis D. Brandeis: American Prophet, said the grievances against Brandeis ― a progressive lawyer who would also become the court’s first Jewish justice ― have little in common with what Garland is facing today.
“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 leads the National Constitution Center in Philadelphia. “The delay in Garland’s confirmation reflects our more polarized Senate confirmation process.”
It’s that polarization that explains why Mitch McConnell (R-Ky.), the Senate majority leader, declared almost immediately after Scalia’s death that he would stall on any replacements offered by Obama ― at least in the heat of an election season.
If history should serve as a guide, the Brandeis nomination battle itself was waged during an election year. And his consideration by the Senate was historic in its own right, ushering in a new era in public Senate Judiciary Committee hearings ― which until then were held behind closed doors.
Brandeis himself wasn’t allowed to testify in his own defense. But like Garland, that didn’t keep him from letting others speak 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.”
So far, the only thing Garland has done to move his nomination forward is meet with senators from both parties ― including Sen. Chuck Grassley (R-Iowa), the Senate Judiciary Committee chairman who with McConnell is leading the blockade against him ― and filling out a questionnaire that more or less confirms he’s well qualified for the Supreme Court.
None of these facts appear to move Republicans. Don Stewart, a McConnell spokesman, responded dismissively when told Garland was poised to break a new record in the history of Supreme Court confirmation disputes.
“You seem surprised,” he said in an email, before making an oblique reference to Sen. Chuck Schumer (D-N.Y.), who supports Garland and could be the next leader of the Senate. As if having nothing else to say, Stewart proceeded to copy and paste, verbatim, the same statement McConnell issued after Scalia’s death:
“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.”
Jennifer Bendery contributed reporting.