The Garland nomination: Don't do as I say or do

Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, is highly qualified to sit on the Supreme Court; make no mistake about that. Heck, even Bill Clinton’s arch-nemesis, Ken Starr, the former Whitewater special prosecutor, likes him. Unfortunately for Garland and the rest of us, the country is about to find out what life is like when Senate Republicans play by the very rules laid down in June 1992 by Joe Biden and the Democrats. Then, as now, government was divided.

They ran Congress, but George H.W. Bush was president, and in case anyone needs to be reminded, a much younger Senator Biden warned Bush that he should not bother nominating anyone to the Supreme Court until the upcoming November elections were over and done. Biden also signaled that if Bush had the temerity to send a name up to Capitol Hill, the nomination would languish in committee like an unopened box of cereal left to be forgotten in a cupboard.

That way, if Bush won a second term, which he did not, Biden & Co. might just get to Bush’s pick by Christmas. If they felt like it. But, on the other hand, if the Democrats captured the White House, Bush’s nominee would simply be a footnote to history, and a newly elected President Clinton would make the call.

As a practical matter, Biden’s posturing shed more heat than light as no seat became vacant. Was Biden being purely political? You betcha. But what else is new? Biden was the same guy who in 1987 helped block Robert Bork, then a judge on the D.C. Circuit – just like Garland – from making it to the Supreme Court.

If you’re thinking Biden and his buddies believe the rules apply only to Republicans, you’d have plenty of reason to think so.  Disregarding Senator Biden’s admonition,Vice President Biden and his boss, President Obama, have demanded that the Senate take up the Garland nomination.

Talk about doing a 180-degree turn. But, again, it is no surprise.

Fast forward to 2007, when the Senate Democrats, led by Chuck Schumer and Harry Reid, almost torpedoed the nomination of Leslie Southwick, a former Department of Justice colleague of mine, to the U.S. Court of Appeals for the Fifth Circuit. The fact that Southwick had served as a lieutenant colonel in the Iraq War was of no importance to them, a small incidental that mattered little to Brooklyn’s best and Vegas’ finest. Likewise, the fact that Southwick was rated “well qualified” by the American Bar Association was irrelevant.

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No, Schumer and Reid were determined to make Southwick a stand-in for the Confederacy, and Southwick’s personal history was not about to get in their way. You see, Schumer and Reid were intent on playing social justice warriors, re-enacting the Battle of Vicksburg and placating the Democrats’ base.

As Southwick recollected in his political biography, “The Nominee,” Schumer back then sounded a lot like Biden, with the same sanctimony and the same grandiose absolutism. In Schumer’s eyes, it was the Senate’s job to consider the “history behind the seat to which the candidate has been nominated,” as well as the “ideological balance within the court to which this nominee aspires.”

Turning to Reid, Southwick’s problem was that he wasn’t a social worker. According to Reid, “Southwick’s record gives us no reason to hope that he will continue this tradition of delivering justice to the aggrieved.” 

In the end, Southwick was confirmed by the Senate 59 to 38. Sanity had prevailed.

Against this backdrop, it’s easy to understand why the Senate Republicans have no interest in giving Garland a hearing. The presidential campaign is in full swing, Biden is now vice president, and it was Barack Obama who first said in 2008, “If they bring a knife to the fight, we bring a gun.” 

Right now, the Republicans are acting like Democrats, some of them anyway. And it isn’t pretty.