The empty seat
Our view: Latest legal stalemate underscores foolishness of ignoring Supreme Court nominee for a now-record six months and counting
Wednesday marked the 200th day since the death of Supreme Court Justice Antonin Scalia, and right on cue, the nation’s top jurists handed down a decision to reflect the absurdity of holding up his replacement. Ona4-4 tie, the justices refused to reinstate — temporarily or otherwise — portions of North Carolina’s restrictive voter ID law which were struck down just two months ago by federal appeals court judges who described them as designed to keep African -mericans from voting with “almost surgical precision.”
The North Carolina law is among the more repellent versions of the voter IDlaws that have popped up in GOP-controlled states in a misguided effort to disenfranchise poor and minority voters on the grounds of preventing “voter fraud” that simply does not exist in any substantial way. In addition to requiring certain types of photo ID, such laws often limit the number of polling places, reduce early voting hours and locations, deny out-of-precinct voting and take other steps to make it much more difficult for people to vote. Why? Because lower turnout, particularly among minorities, generally favors Republican candidates.
This isn’t the final word on the case, of course. It just means North Carolina can’t impose these barriers in the upcoming election. To make a more definitive ruling, the U.S. Senate would need to confirm a ninth member of the Supreme Court, and that’s where Merrick Garland comes in. Readers may recall Mr. Garland — chief judge in the U.S. Court of Appeals for the District of Columbia, well-regarded legal mind, prosecutor of the Oklahoma City bombing perpetrators, one-time clerk to Justice William Brennan, magna cum laude from Harvard Law School, etc.
Oh, and he was nominated to replace Scalia on the Supreme Court by President Barack Obama back on March16 — that was164 days ago. That last number is important because the longest a Supreme Court nominee has waited to be confirmed over the entire history of the United States prior to Mr. Garland was 125 days, and that was Louis Brandeis a century ago. Judge Garland has been the recordholder since mid-July.
No hearings, no vote. In some cases, especially rude GOP senators have declined to even meet with him. The freeze-out of Judge Garland has been nothing short of disgraceful, not to mention extremely short-sighted given his reputation for moderation and non-partisanship. (Justice Brennan was a Dwight D. Eisenhower appointee.) Given that it is now September and former Secretary of State Hillary Clinton remains an odds-on favorite to be elected president (the current FiveThirtyEight.com forecast puts her chances at 74 percent), the next nominee — her choice — may turn out to be far more liberal than Judge Garland. Republican control of the next Senate isn’t looking like such a sure thing either. Judge Merrick Garland has waited longer for a Senate vote than any other Supreme Court nominee in history.
That’s probably why there’s been renewed talk that after Nov. 8, the Senate might actually, belatedly, consider President Obama’s appointment. Senate Judiciary Committee Chairman Charles Grassley said on Monday that a lame duck consideration of Mr. Garland might happen if enough senators step forward in favor of a hearing. That scenario remains unlikely if only because it would further underscore the ridiculousness of the official GOP position (that voters ought to have a bigger say regarding the appointment) in the first place.
Still, there’s a day of reckoning coming. If elected president, Ms. Clinton will be pressured to nominate someone both more liberal and younger than the 63-year-old Chicago native. Don’t take our word for it — that’s been the rallying cry of the National Rifle Association and other GOP-leaning groups in their last-gasp campaign to turn the election toward Donald Trump. They’ve been warning conservatives mindful of hot-button issues like abortion rights and gun control that the next president will choose the court’s philosophical make-up for perhaps a generation.
That mantra — Hillary Clinton means a more liberal Supreme Court — is going to essentially be baked into Election Day as voters are reminded again and again that the fate of the Supreme Court lies with the next president and not with the next Senate. Will Sen. Mitch McConnell then turn around and admit he sat on the Garland nomination in hopes that his party would take the White House and now that they haven’t all bets are off? Nothing would prevent such jaw-dropping hypocrisy — except perhaps an electorate that truly expects Supreme Court nominees to get a fair hearing no matter which party controls the White House.