Merrick Garland is everything that has been said about him: Harvard honors student, Supreme Court clerk, prosecutor of Timothy McVeigh, experienced judge of the center-left sort; praised by Sen. Orrin Hatch, Chief Justice John Roberts, and Gov. John Kasich, who has said that he would consider nominating Garland if he were president. Then-Judiciary Committee Chairman Hatch observed, of the 1997 Senate (76-23) confirmation of Garland's nomination to the U.S. Court of Appeals for the D.C. Circuit, that no one dared to come to the floor to speak against Garland.
Garland has deferred to the Executive branch in challenges to Guantanamo Bay, finding no jurisdiction in a detainee's challenge. He has described the constitutionality of capital punishment as "settled law". But in Saleh v. Titan Corp., he dissented, arguing that Iraqi victims of abuse at Abu Ghraib prison should be allowed to sue in tort the private U.S. government contractors whose personnel had savagely abused them. He has upheld EPA authority under the Clean Water Act, and often voted to affirm pro-employee rulings of the National Labor Relations Board.
Although the evidence of his qualifications is plain, Garland's nomination is burdened by the immediate reflex action of Senate Majority Leader Mitch McConnell that Barack Obama is not to have this pick. The U.S. Constitution, of course, provides that the president shall nominate, and with the advice and consent of the Senate, appoint the members of the Supreme Court. Though political hardball over judicial nominations is no party's monopoly, the Senate leader's refusal to even consider the president's nominee is without precedent.
We know that legal judgments are not mathematical deductions but often policy choices. And that when legislators and executives sharply disagree, the fights are bitter. But when judges are seen as politicians in robes, confidence in the judiciary suffers. Thus the refusal to hold hearings until after the presidential election will do damage to the courts if it is sustained.
So what then to make of the Garland nomination? In our view, Barack Obama has proposed an ideal "consensus" candidate. One who has garnered bipartisan support in the past. But we are confronted with a political environment too often characterized by opposition that is scornful of compromise and dismissive of the legitimacy of political opposition. Such a situation makes it nearly impossible for the political system to deal constructively with the country's challenges.
Merrick Garland is a judge whose record tells us that he models the kind of search for broad agreement that serves the courts and the country well. If the Senate continues to stonewall his nomination, it will embroil the Supreme Court in partisan combat that threatens confidence in the judiciary, as recent remarks by Chief Justice Roberts suggest. We join many others in urging the Senate to offer its advice and consent to the nomination of Judge Garland.