President Obama has nominated Judge Merrick Garland to the US Supreme Court. By all accounts he is a fine person and a good jurist. But the math is simple. In 2014 the Democrats in charge of the Senate changed the confirmation rules to allow a simple majority vote to confirm judges and other appointments. Except, they left the filibuster requiring 60 votes for a Supreme Court nomination. Then we Democrats lost the 2014 election including a huge loss in the Senate. There are now 54 Republicans, 44 Democrats, and 2 independents (who vote with Democrats).
Fourteen Republicans would have to vote with the Democrats and independents to get the required 60 votes. There is no chance of fourteen Republicans abandoning their political base and campaign funding sources.
Now you can argue tradition and decorum, but the bottom line is the Senate is not required constitutionally to hold hearings and a vote. It is simply required to give its “advice and consent”, which it has now done via the Majority Leader exercising his rights under the Senate rules with the full support of the Republican caucus.
44 + 2 = 46, not 60.
So what is the argument really about? The real issues politicians often fight about are not what they say, but something else a layer below the outrage. This is an election year and politicians perceive the need for issues to raise money from their bases. This is not about the constitution, Judge Garland, or election results. It is about money.
But on the merits is Judge Garland a wise pick?
The entire sitting Supreme Court came from four law schools: Harvard, Yale, Stanford, and Columbia. One could argue just three, as although Justice Ginsburg graduated from Columbia, she spent the bulk of her law school tenure at Harvard. Judge Garland graduated from Harvard.
At times modern political discourse devolves into “diversity” arguments. There are 207 accredited law schools currently in the United States. How is it diverse to have the highest court in the land made up of graduates of 1.4% of law schools?
Reading the Justice’s biographies after law school a similar geographic concentration leaps out:
- Justices Breyer and Kennedy are originally from California, but have spent much of the last thirty years in Washington, DC.
- Justice Thomas originally practiced primarily government law in Missouri, but has now been in Washington, DC for thirty-five years.
- All the other Justices have spent the vast bulk of their careers in Boston, the New York City area, or Washington, DC.
Not a single “flyover” Justice. Not a single politician familiar with the rough and tumble of winning elections and governing. Very little trial or judicial experience outside the elite federal appellate courts and any such experience decades old. Judge Garland is more of the same – a government career, a federal appellate judge, Washington, D.C. as his lodestone.
We hear endlessly from President Obama that he is looking for judges with diverse backgrounds who can bring their experiences to the court. Why not a Westerner or a Southerner? Why not a real trial lawyer or trial judge out of the state courts? Why not a Native American?
Using the West as an example. The biggest issues in most Western states are: rapid population growth and development; water; D.C. based management of more than fifty percent of Western geography; and Native American tribes and their rights plus relationships to land, water, and wildlife. Is it too much to ask that one justice of the U.S. Supreme Court have actual knowledge and experience of these issues?
Justice O’Connor, now the favorite conservative of Democrats, had much of this background. Raised on a dry cattle ranch in Southern Arizona she had first hand experience with water rights and federal land management altering and even destroying ranching. In Arizona she was a state attorney general, a state trial lawyer and judge, a state appellate judge, and an elected politician. And even though she was a graduate of Stanford law, she brought a knowledge of the West and politics to critical cases before the Supreme Court.
We have enough Merrick Garlands on the Court. Let us hope the next president will find enough wisdom to give the “flyovers” one seat on the nation’s highest court.