We haven’t written much about the Senate’s treatment of, and the posturing by Senators surrounding, Judge Merrick Garland’s nomination to the Supreme Court. The reason I haven’t written much is that the state of play seems clear: Judge Garland will not get a hearing before the November election. Afterwards, if a Democrat wins the presidency, Republicans will consider their options.
In the absence of any real suspense, the discussion has turned to collateral matters such as which Republican Senators are willing to meet with Judge Garland, and whether they should be doing so. Some conservatives, for example, FreedomWorks, are unhappy that certain Republican Senators are holding courtesy meetings with the Judge. Reportedly, 16 or 17 of them are prepared to do so.
I agree with Ed Whelan, who writes:
It strikes me as trivial whether or not a Republican senator chooses to have a meeting. The important thing is holding the line against proceeding to a hearing.
I suppose that FreedomWorks might imagine that not having meet-and-greets might make it easier to hold the line against having a hearing. But I don’t see why that would be the case. It seems to me far more likely that by picking a fight that is not worth fighting FreedomWorks is generating unhelpful divisiveness and controversy among Republicans and distracting attention away from the heat that Democratic senators in red states ought to be receiving.
I’m sure that Judge Garland is a charming man, but he isn’t going to be able to charm Republican Senators into breaking ranks with their leadership (though a few will anyway for reasons of political preservation). And it will be easier politically for some Republican Senators to hold the line if they have afforded Garland the courtesy of meeting him.
Finally, for perspective on the fight over Garland’s nomination, let’s turn to Justice Scalia, whose untimely death has precipitated this battle. I’m told that in a 2002 speech at SUNY-Buffalo School of Law, Scalia stated that as long as judges are the source of the Constitution’s meaning, judicial selection “becomes a very hot potato.” Thus, “every time you need to appoint a new Supreme Court justice, you are going to have a mini-plebiscite on what the Constitution means.”