Geoffrey Stone on Senate Republicans, Merrick Garland and the Lessons of History

The Senate Republicans, Merrick Garland and the Lessons of History

On February 13, the very day of Justice Antonin Scalia’s untimely death, Senate Majority Leader Mitch McConnell stunningly announced that the Senate, under Republican control, would not consider any nominee President Barack Obama put forth to succeed Justice Scalia. McConnell and his fellow Senate Republicans insisted that the American people should have the opportunity to weigh-in on this issue, and that it was therefore President Obama’s successor, rather than President Obama, who should have the authority to replace Justice Scalia.

Despite that unprecedented proclamation, on March 16 President Obama nominated Merrick Garland, the Chief Judge of the United States Court of Appeals for the District of Columbia, to succeed Justice Scalia. Although everyone with even a modicum of expertise agrees that Chief Judge Garland is a highly-qualified, highly-respected, and moderate nominee, Senate Republicans have adamantly refused even to consider his nomination.

The purported “justification” for the Senate Republicans’ refusal to even consider Merrick Garland’s nomination is that the next president should be the one given the authority to appoint Justice Scalia’s successor. By employing this strategy, Senate Republicans, praying for a victory in November, hope to enable Donald Trump, rather than Barack Obama, to appoint the next Justice of the Supreme Court.

In a new scholarly article, law professors Robin Kar and Jason Mazzone have taken a deep dive into the history of Supreme Court nominations to test the plausibility of the Senate Republicans’ purported “justification” for their action. Not surprisingly, they find that the Senate Republicans’ alleged “justification” is completely bogus. It is, in short, exactly what it appears to be — a cynical and unconscionable sham.

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