New York Times (Op-Ed)
By Richard Painter
March 23, 2016
As the chief ethics lawyer in the White House Counsel Office, I helped President George W. Bush with the nomination and confirmation of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to the Supreme Court.
We were fortunate to have a Republican-controlled Senate at the time. Some Democratic senators talked of filibustering these nominations, but the president knew that the senators wouldn’t filibuster, just as they would not refuse to attend the confirmation hearing. Senators can vote against a Supreme Court nominee after holding a hearing, but refusing to vote on a nominee at all is unthinkable. Voters expect their senators to do their jobs.
Things would have been somewhat different if President Bush had needed to fill a Supreme Court vacancy during his last two years in office, when Democrats controlled the Senate. The Senate Judiciary Committee would have carried out its constitutional duty to consider a nominee, but Democrats probably would have voted down anyone they thought was too conservative. President Bush would have recognized this, and most likely would have sent the Senate a very different type of nominee, someone Republicans and Democrats could agree on. Someone like Judge Merrick Garland on the Court of Appeals for the District of Columbia Circuit.
We all remember what happened to President Ronald Reagan’s nominee Judge Robert Bork. He got a hearing, a (usually) polite reception and meetings with senators, and then a “no” vote on the Senate floor. In years when the government is divided, a nominee who is too conservative or too liberal is likely to be rejected.
The best option in this situation is for the president to nominate a consensus candidate. The president should choose someone like Justice Anthony M. Kennedy, whom President Reagan later nominated.
Judge Garland is just the kind of candidate we would have advised President Bush to nominate if he had been in this situation. A proven moderate, he has enjoyed widespread Republican support in the past. As a former prosecutor, he is often sympathetic to the prosecution in criminal cases. He has aggressively and thoroughly prosecuted terrorists. Senator Orrin G. Hatch, Republican of Utah, who is an expert on the Constitution as well as the confirmation process, admires him. Judge Garland is exactly the type of person who might have been chosen by the Bush administration if a Supreme Court nomination had been submitted to a Democratic-controlled Senate. Like the Kennedy nomination in 1987, a Garland nomination is a good way for a president to get the job done.
And what if the senators had still refused to do their job after President Bush nominated someone like Judge Garland? What if they still refused to hold a hearing and a vote? If that had happened during the Bush administration, the president would have flown Air Force One straight to the senators’ home states. And Karl Rove — grinning like a Cheshire cat — would have been ordering the champagne and counting the days until November.
It is time for the Senate to consider the Garland nomination. Judge Garland should get exactly what Justice Alito got in 2006: a hearing, perhaps with some bluster along the way, but a vote in the end, and confirmation.
Today’s political situation is volatile, particularly for Republicans. Problems created by badly behaving senators are compounded by even more badly behaving presidential candidates. If the Senate does not move forward with the Garland nomination now, a lot of senators could find themselves voting on a Supreme Court nominee in December while packing up their offices. And by January, the chance to put a justice on the court who is acceptable to conservatives could be gone.
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