On March 16, 2016, President Obama nominated Merrick Garland to the Supreme Court of the United States. While this issue is being politicized in the press, Republicans are rightfully rejecting any nominee at this time.
Judge Garland does have a history of arguably centrist positions. For example, in 2003, Judge Garland joined in an opinion that detainees of Guantanamo Bay did not have a right to judicial review of their status in federal court. Judge Garland was subjected to substantial criticism from the left as a result of his decision. He also ruled in favor of expanding the rights of corporations regarding campaign finance and in support of eliminating federal limits on campaigning financing, much to the chagrin of the liberal left.
There are nonetheless major concerns being heard from the Republican camp concerning Judge Garland’s nomination. A persistent source of anxiety among conservatives relates to Judge Garland's seemingly hostile stance on issues relating to the Second Amendment right to bear arms. In 2007, the D.C. government passed a ban outlawing handgun ownership even for purposes of self-defense. The D.C. Circuit Court struck down the ban, which led Judge Garland to attempt to revisit (and, presumably, overturn) the ruling. Given the importance of Second Amendment in the current political climate, it is not surprising that a Supreme Court nominee who has demonstrated antipathy toward gun rights may spark controversy.
The Republican-controlled Senate certainly has a right to reject this late-second-term nomination. The larger policy debate centers on whether the Senate should even hold hearings on the nomination, to which some Republican Senators cite the “Biden Rule” as support.
In 1992, nearing the end of President George H.W. Bush’s second term, then-Senator Joe Biden, as Chair of the Senate Judiciary Committee, argued that if a seat on the Supreme Court were to open within the last months of his presidency, President Bush should withhold nominating a replacement and that the Senate need not consider a nomination if made under those circumstances. Senator Biden proclaimed from the floor of the Senate that withholding the selection “is what is fair to the nominee and central to the process. Otherwise, we will be in deep trouble as an institution.” He explained “It would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” If Mr. Biden was sincere in wanting to show respect to a late term Bush nominee, why should the present Senate not show the same respect to Judge Garland. If there were concerns in 1992 that the nomination process would be politicized for purposes of the election, why is the current climate any different?
It is clear that the political environment surrounding Judge Garland’s nomination cannot be ignored. Irrespective of fault, politics presently are polarized and we are faced with what could be an ugly, combative presidential campaign. In fact, the current political climate is reminiscent of that existing when then-Senator Biden first espoused the “Biden Rule,” as he then predicted that the 1992 campaign would be “one of the bitterest, dirtiest presidential campaigns we have seen in modern times.” Nearly twenty-five years later, we find ourselves in this same condition where application of the “Biden Rule” is both appropriate and prudent.
Importantly, the philosophical balance of the Supreme Court cannot be ignored. Judge Garland is, of course, being appointed to fill the vacancy created by the death of Justice Antonin Scalia, a staunch conservative. It is disingenuous for Democrats to now claim that the political balances of the Court should be ignored. This certainly was the position of Democratic leaders Chuck Schumer and Harry Reid in their 2007 effort to tank the nomination of Leslie Southwick to the United States Court of Appeals for the Fifth Circuit. In supporting Senator Reid’s opposition to the nomination, Senator Schumer proclaimed that it was the Senate’s obligation to consider the “history behind the seat to which a candidate has been nominated,” as well as the “ideological balance within the court to which this nominee aspires.” When the composition of the choir changes, the Democrats seem to change their tune.
Would it be politically expedient for Senate Republicans to at least hold hearings and seriously consider President Obama’s nomination? Perhaps. But it is of far more importance that the balance of the nation’s highest court be respected. The fact that President Obama could have appointed a far more left leaning nominee, such as Justices Sotomayor or Kagan, does not justify ignoring the “Biden Rule” in this contentious political climate. A presidential election is upon us, and whoever ultimately occupies the nation’s highest office should have the right to make this monumentally important nomination.
Jordan Ryan, sophomore resident of Lyons Hall, studies political science and peace studies along with minors in Constitutional studies and business economics. She can be reached at jryan15@nd.edu
