U.S. Circuit Judge Merrick Garland’s nomination to the Supreme Court expired at noon Tuesday, clearing the way for President-elect Donald Trump to fill a vacancy Senate Republicans held open for months with an appointee championed by conservatives.
Judge Garland’s nomination languished for nearly 10 months until it expired with the formal adjournment of the 114th Congress. Republicans said their inaction on the nomination was a way to permit voters to weigh in on the Supreme Court’s direction by electing the next president. Democrats accused Republicans of “stealing” a nomination that voters entrusted to President Barack Obama in his 2012 re-election.
“I’ve been clear throughout that the next president would name the next Supreme Court justice,” Senate Majority Leader Mitch McConnell (R., Ky.) said through a spokesman. “Now, the president who won the election will make the nomination, and the Senate the American people just re-elected will consider that nomination.”
The Senate’s new Democratic leader, Sen. Charles Schumer of New York, saw it differently.
“What Senate Republicans did to Judge Garland, the Supreme Court, and the Constitution was appalling. Judge Garland is respected on both sides of the aisle,” Mr. Schumer said through a spokesman. “That he did not even get so much as a hearing will be a stain on the legacy of the Republican Senate.”
Mr. Obama nominated Judge Garland in March to succeed the late Justice Antonin Scalia , presenting the former federal prosecutor and current chief judge of the U.S. Court of Appeals for the District of Columbia Circuit as an eminent jurist widely respected among Democrats and Republicans.
But the Supreme Court’s ideological tilt was on the line in the final year of Mr. Obama’s term. Mr. McConnell declared within hours of Justice Scalia’s February death that Republicans wouldn’t consider any nomination by the Democratic president, a high-stakes move that paid off with Mr. Trump’s November victory.
Mr. Trump, after consulting with leaders of conservative organizations such as the Heritage Foundation and the Federalist Society, has named 21 potential candidates, all of whom boast records suggesting they would join Justices Clarence Thomas and Samuel Alito on the court’s right wing. The president-elect has turned to staunch conservatives for his legal team, including future White House Counsel Don McGahn and Sen. Jeff Sessions (R., Ala.), his nominee for attorney general. They are expected to play leading roles in making the final selection after Mr. Trump takes office on Jan. 20.
Republicans hold a 52-48 advantage in the Senate and are likely to unanimously back Mr. Trump’s eventual nominee.
The White House had no immediate comment and didn’t make Judge Garland available to speak.
But a close friend of Judge Garland, Robert Post, dean of Yale Law School, lamented the outcome.
“Petty politics has destroyed a great opportunity to add to the dignity and quality of the Supreme Court,” said Mr. Post, who clerked alongside Judge Garland for Justice William Brennan in the 1970s.
Democrats have yet to decide how hard to fight an appointee who, in effect, will restore the ideological ratio on the court that existed before Justice Scalia’s death. There is little doubt, however, that Democrats will raise what they consider the unfair treatment of Mr. Obama and his nominee.
Judge Garland oversaw the prosecution of Oklahoma City bomber Timothy McVeigh in the 1990s before President Bill Clinton appointed him to the D.C. Circuit. Mr. Obama passed him over to fill Supreme Court vacancies in 2009 and 2010, when Democrats controlled the Senate.
By nominating Judge Garland, 64 years old, to replace Justice Scalia, the president hoped to offer Senate Republicans a known quantity they would confirm over a potentially more liberal, and younger, selection that the Democrats then running for president, former Secretary of State Hillary Clinton or Sen. Bernie Sanders of Vermont, might have offered.
But the political landscape had shifted far more than Mr. Obama anticipated. Republicans escalated the long brewing partisan war over judicial appointments and didn’t give Judge Garland a hearing.
That led to a sometimes surreal spectacle in which Judge Garland went through the motions of a Supreme Court nomination, without the substance of Senate action. He was introduced by the president at a Rose Garden ceremony, met with senators in their legislative offices as news cameras trailed him through corridors, submitted his official questionnaire to the Senate Judiciary Committee, and underwent review by the American Bar Association.
Judge Garland, who recused himself from hearing appeals court cases while his nomination was pending, is returning to his prior job at the D.C. Circuit and is scheduled to resume hearing cases on Jan. 18.
He isn’t the first nominee to continue a lower court career after seeing his hopes of elevation dashed.
In 1987, President Ronald Reagan’s nominee, D.C. Circuit Judge Douglas Ginsburg, withdrew after disclosures that he had smoked marijuana in the 1960s and ‘70s. Judge Ginsburg, now 70, continues to hear cases as a senior judge. In 1968, President Lyndon Johnson withdrew his nomination of U.S. Circuit Judge Homer Thornberry to succeed Justice Abe Fortas after a Republican-led filibuster prevented the latter’s elevation to chief justice. Judge Thornberry returned to serve on the Fifth Circuit for more than a decade.
Judge Garland’s nomination did make history in at least once sense. The 293 days it sat in the Senate without action easily broke the record 125 days the Senate took before confirming Justice Louis Brandeis in 1916.
The Constitution’s recess appointment power allows the president to make appointments to federal offices without congressional consent while Congress is in recess. The appointment is only temporary, and expires at the conclusion of the ensuing Senate session — in this case, December 2017.
Liberals argue the president has authority to make a recess appointment in a matter of seconds on Tuesday and have been begging him to do it.
The 114th Congress will hold its final session on Tuesday, during which the speaker of the house will officially conclude the term’s business. At the strike of the speaker’s gavel, Congress will technically be in, if only for a moment, before the 115th Congress is called to session one minute later. It’s that brief moment, called an “inter-session recess,” that some believe presents Obama the opportunity to exercise his recess appointment power.
But Obama didn’t do it
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