Court nominee deserves a hearing

Published 9:58 am Tuesday, March 22, 2016

The Herald is neither Republican nor Democrat, but we — the present members of the Editorial Board — do stand on the liberal side on some issues and on the conservative side on other issues.

On the issue of President Barack Obama nominating a justice for the Supreme Court to replace conservative Antonin Scalia, we come down on the side of history.

It’s preposterous to claim there is not precedence for a president to nominate a Supreme Court justice in the final year of his second term.

“There comes a point in the last year of the president, especially in their second term, where you stop nominating,” said Florida Sen. Marco Rubio.

That’s just flat-out not true.

The following 14 justices have been confirmed in an election year.

• Oliver Ellsworth, 1796

• Samuel Chase, 1796

• William Johnson, 1804

• Philip Barbour, 1836

• Roger Taney, 1836

• Melville Fuller, 1888

• Lucius Lamar, 1888

• George Shiras, 1892

• Mahlon Pitney, 1912

• John Clarke, 1916

• Louis Brandeis, 1916

• Benjamin Cardozo, 1932

• Frank Murphy, 1940

• Anthony Kennedy, 1988

In fact, Senate Majority Leader Mitch McConnell, a vociferous opponent of nominating a justice this year, voted for making Kennedy a Supreme Court justice back in 1988, the final year of Ronald Reagan’s presidency.

So did Iowa’s Chuck Grassley, who has been banging the same talking points as Rubio and McConnell.

In fact, they are saying Obama shouldn’t even try to nominate someone.

However, it’s clear Obama is obligated by the U.S. Constitution to nominate a justice for the Senate to consider. To say he shouldn’t even try is just a negotiating tactic — to say to Obama that he should not nominate a liberal-leaning judge.

And you know what? The tactic worked.

Obama nominated Merrick Garland, the chief judge of the District of Columbia Court of Appeals who has drawn praise from both parties. He is a centrist. His law clerks went on to clerk for liberal and conservative judges.

Republicans in the Senate would be wise to approve Garland — after at least giving him the usual hearing. The presidential candidate who captures the moderates in the middle wins the Oval Office. With Donald Trump on the way to stealing the Republican nomination from the establishment side of the Grand Old Party, he no doubt would shoo away the centrist voters toward the Democratic nominee. Don’t take our word. Nearly every political scientist is forecasting that outcome if Trump gets the nomination.

The strategy of waiting until the next president could result in a liberal president nominating a dyed-in-the-wool liberal judge in 2017. Surely, McConnell, Rubio and Grassley would rather see a moderate than a clear liberal. Garland, for instance, sided with President George W. Bush on detaining suspected enemies at the Guantanamo Bay prison without the right to challenge their imprisonment. He also has had rulings on the other side of Guantanamo Bay issues, too, showing he is discerning, not political. He adheres to his interpretation. He is even-handed.

The Senate Republicans should give Garland the hearing he deserves. Without a doubt, there is precedent for that step.