McConnell’s unconstitutional blockade of Garland poisoned subsequent proceedings

Sen. Susan Collins (R-Maine) recently suggested that, when it comes time for the Senate to consider whomever President Biden nominates to succeed departing Supreme Court Justice Stephen Breyer, “it would be harmful to the country to have a repeat of what we saw with the last two nominees being so narrowly confirmed.” Likely she was referring to Justices Brett Kavanaugh and Amy Coney Barrett, and the lack of bipartisan approval of these justices, who were respectively confirmed by Senate votes of 50-48 and 52-48 — in contrast, say, to the 87-9 vote for Breyer himself back in 1994. 

As Collins knows, the tenor of the Kavanaugh and Barrett hearings and lack of Democratic support for the nominees — as well as Neil Gorsuch before them (54-45) — may be traced in no small part to the Senate’s 2016 refusal to consider Merrick Garland, former President Obama’s nominee to replace Justice Antonin Scalia on the high court. Following the direction of then-Majority Leader Mitch McConnell (R-Ky.), Senate Republicans declined to hold any hearings on Garland or, indeed, to substantively act on his nomination in any way.

Even if a move like McConnell’s had been contemplated by Senators in the past, it had never been tried. Aside from the lack of historical precedent, the blockade was arguably unconstitutional. It undermined both the letter and spirit of Article II, which states that the president “shall have the power” to “nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.”

While the text of the Constitution does not mandate that the Senate confirm any particular nominee who appears before them, it does suggest that the Senate must do something when the president presents a nominee; namely, give its “advice and consent” on the president’s choice. For more than a generation, the Senate had fulfilled this responsibility by holding hearings on nominees, giving Senators the opportunity to question nominees about their experience, judicial philosophies and anything else a Senator might deem relevant to a lifetime appointment to the Supreme Court.

Notably, the Constitution contains no exception to the requirement that the Senate give its advice and consent for nominations made in the final year of a president’s term. And the Senate had not in the past treated such nominations differently.

One might argue that, as a practical matter, there is no difference between a refusal by a Senate majority to consider a nominee and the ultimate rejection of a nominee after some consideration. But the distinction between the two relates to the kind of democratic accountability we should expect in our constitutional republic: If senators must give nominees some consideration, it follows that they must participate in a process that will reveal something about the nominee’s view and interests, as well as those of the senators themselves. All of this information may be taken into account by the voters who exercise the ultimate check on both their representatives in Congress and the president.

In seeking to justify the 2016 Republican treatment of Garland, Republican Senators like Orrin Hatch alluded to a need to honor the jurisprudential philosophy of the recently departed Scalia and his commitment to an originalist interpretation of the constitution, which focused on the words the Framers chose. And then, of course, they chose to ignore those very words.

There may well be political or pragmatic reasons for the Democrats in the Senate to put the Garland nomination behind them, but they — and we — should not forget the Republican display of contempt for the Constitution, especially as Republican senators continue to extol the common thread that links former President Trump’s picks for the high court: fidelity to the text of our national charter. 

Unlike Republican senators in 2016, these justices likely appreciate that such fidelity may lead to unwelcome ends. As Scalia famously put it, a commitment to originalism means that “you have to resign yourself to the fact that you’re not always going to like the conclusions you reach.” After all, he continued, “[i]f you like them all the time, you’re probably doing something wrong.”

Lawrence Friedman is a professor of privacy and constitutional law at New England Law in Boston.