Cornyn’s next move
Texans should expect their senior senator to keep his word on not blocking nominees.
“We need to get a fresh start.” That’s what U.S. Sen. John Cornyn said in 2005 when Democrats opposed President George W. Bush’s judicial nominations. Today, as President Barack Obama nominates Merrick Garland to fill Antonin Scalia’s seat on the U.S. Supreme Court, we hope that Cornyn will take his own advice.
So far, however, Cornyn and the bulk of Republicans in the Senate seem ready to keep fighting and escalating. While the Constitution grants the president the power to nominate candidates to the Supreme Court, they can only be appointed with the “advice and consent” of the Senate. This means majority approval. But Cornyn isn’t merely threatening to vote against Merrick, or even attempting to filibuster a vote. As a member of the Senate Judiciary Committee, Cornyn refuses to have hearings in the first place.
In fact, Texas’ senior senator and former justice on the Texas Supreme Court threatened to wallop any nominee like a piñata.
Cornyn has justified this stonewalling — unprecedented in modern politics — by claiming that “Democrats would do the same thing if the shoe was on the other foot.”
No doubt that tit-for-tat drives too much of the political mindset in Washington, but like Cornyn said, we need to get a fresh start.
Merrick would be a good place to begin. Widely considered the model, neutral judge, according to Supreme Court blogger Tom Goldstein, Merrick, 63, has more federal judicial experience than any other Supreme Court nominee in U.S. history. He was confirmed to the United States Court of Appeals for the District of Columbia Circuit in 1997 and was elevated to chief judge in 2013. During Merrick’s first confirmation hearings, arch-conservative Sen. Orrin Hatch, R-Utah, said the nominee was “as good as Republicans can expect from [the Clinton] administration. In fact I would place him at the top of the list.”
Before he was appointed to the bench, Merrick served as an attorney in the Department of Justice, where he led the investigation of the Oklahoma City bombing and successfully secured a death sentence for Timothy McVeigh.
Overall, Merrick’s nomination is a good faith effort by Obama to put forward a non-controversial, middle- of-the-road candidate. There’s obvious differences between him and the man he was replacing: Scalia was Catholic and Merrick is Jewish. Scalia was an activist originalist and Merrick is known for avoiding unnecessary, sweeping pronouncements. But there’s no doubt that a candidate with Merrick’s temperament, intellect and experience is qualified to hold a seat on the Supreme Court.
Merrick has worked hard to get where he is, graduating valedictorian from Harvard College and graduating magna cum laude from Harvard Law School, where he served as articles editor on the Harvard Law Review. He has shown jurisprudential brilliance in a variety of disciplines whether leading prosecution against the most virulent of terrorists or delving into complex and often tedious regulatory matters that face the D.C. Circuit. Merrick has earned a hearing before the Senate.
As Cornyn himself has said through the years, an up-or-down vote on judicial nominees is a matter of fundamental fairness.
It is also a matter of upholding the U.S. Constitution. Waiting until after the presidential election in November to nominate a justice to replace Scalia, as Cornyn has argued, would undermine the constitutional protections that isolate the nation’s highest court from the sways of a turbulent political sea. As the Founding Fathers wrote in Federalist No. 78, the “complete independence of the courts of justice is peculiarly essential in a limited Constitution.”
Instead of maintaining the “specified exceptions to the Legislative authority,” as the Founders wrote, Cornyn wants to transform judicial appointments into an election, violating the original vision of the Constitution — something we’re sure would earn the scorn of Scalia.
“It is the Senate’s constitutional duty to act on each nomination,” Cornyn said under President Bush. “It is also critically important to our judicial system and the proper functioning of our federal government to fill these positions. Senators have a right to vote for or against any nominee — but blocking votes on nominations is unacceptable.”
Presidents may change, but we will still hold Cornyn to his word. Like any honorable Texan, we expect him to keep it.