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Obama upstages Republicans with court choice

Melvin B. Miller

Article II of the Constitution empowers the president to nominate candidates for the Supreme Court, and it further empowers the president, with the “Advice and Consent of the Senate,” to appoint such nominees to the court. The language is unambiguous. Nonetheless, the loss of their reliable conservative on the court with the sudden death of Antonin Scalia induced Republican senators to assert that they would not consider a replacement until after the November election.

President Obama had every intention of responsibly fulfilling his constitutional responsibilities, but he understood that the situation was politically sensitive. He did not want to offend progressive Democrats in an election year with a candidate who was too conservative. Yet he also wanted a choice that Republicans could reasonably support. Merrick Garland, a centrist judge of the D.C. Court of Appeals, fit the bill perfectly.

Rather than declare victory for having forced Obama to choose a moderate for the court, Republican senators continued their rant about letting the people choose after the November election. There is no such constitutionally sanctioned process. Furthermore, inquiry into Garland’s writings and decisions indicates that he actually supports judicial restraint, a quality much admired by most conservatives.

So now Republicans have placed themselves in the awkward position of disrespecting a Supreme Court nominee whose judicial views they support, and they do so despite strong popular preference for the “Advice and Consent” process to proceed.

Republicans have snatched defeat from the jaws of political victory and handed Obama another political coup.