The empty seat

Our view: Lat­est le­gal stale­mate un­der­scores fool­ish­ness of ig­nor­ing Supreme Court nom­i­nee for a now-record six months and count­ing

Baltimore Sun - - FROM PAGE ONE -

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 FiveThir­ 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.


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