Election 2020

Was Merrick Garland's Supreme Court Seat Really 'Stolen'?

Merrick Garland (AP Photo/Manuel Balce Ceneta)

Donald Trump hasn’t even been inaugurated yet, and already the aging bonzes of the MSM are in full meltdown — or, as they like to call it, “resistance” — mode, complaining about the Russians, James Comey, the Electoral College and now the Supreme Court. Weep along with the New York Times:

Soon after his inauguration next month, President-elect Donald Trump will nominate someone to the Supreme Court, which has been hamstrung by a vacancy since the death of Justice Antonin Scalia in February. There will be public debates about the nominee’s credentials, past record, judicial philosophy and temperament. There will be Senate hearings and a vote. No matter how it plays out, Americans must remember one thing above all: The person who gets confirmed will sit in a stolen seat.

It was stolen from Barack Obama, a twice-elected president who fulfilled his constitutional duty more than nine months ago by nominating Merrick Garland, a highly qualified and widely respected federal appellate judge.

It was stolen by top Senate Republicans, who broke with longstanding tradition and refused to consider any nominee Mr. Obama might send them, because they wanted to preserve the court’s conservative majority. The main perpetrators of the theft were Mitch McConnell, the majority leader, and Charles Grassley, chairman of the Judiciary Committee. But virtually all Republican senators were accomplices; only two supported holding hearings.

Oh, boo-hoo; as Mr. Dooley famously said, “politics ain’t beanbag.” The Democrats were perfectly content to have Barack Obama flip the bird to the GOP and say, “I won”; to have Harry Reid all but eliminate the filibuster; and to have Joe Biden long ago having gone on record to say that Supreme Court vacancies close to an election ought to wait for the new president and the new Congress.

What a bunch of crybaby losers. Here’s what I had to say back in April in the New York Post:

Democratic candidates and the liberal media agree: the GOP’s insistence on waiting until the next president to fill Antonin Scalia’s vacancy on the Supreme Court is horrible — and will certainly hurt them in the fall election.

I offer an opposing view: No one cares.

The pressure to appoint him is a political campaign, orchestrated by the bully pulpit of the White House, amplified by Beltway media types. Republicans are right to resist it — and rightly argue that the confirmation of the swing vote should wait until after the election.

After all, Article 3 of the constitution, which establishes the Supreme Court, is silent on its numerical composition, and leaves the rest (including the entire federal judiciary) up to Congress. Indeed, there’s nothing in the founding document that sets the number of justices at the now-traditional nine, which dates from 1869. It’s been as low as six, and as high as 10; during the New Deal, a stymied FDR proposed raising it to 15, but Congress declined.

Obama’s thinking in proposing the liberal Garland is simple: to nominate a respected judge whose judicial record on such hot-button issues as gun control and campaign-finance laws is murky enough to pass wishful muster on both sides and dare the Republican majority in the Senate to reject him. “At no point did I say: ‘Oh, you know what? I need a black lesbian from Skokie in that slot,” he half-joked.

This transparent lame-duck electoral gambit is an offer the GOP can easily refuse. After all, while the Senate must give its “advice and consent” to significant appointments, there’s no rush and no timetable. Indeed, eight of the last 38 court nominations have failed for one reason or another and there hasn’t been a justice nominated by a Democrat president and approved by a GOP-held senate since 1895.

Kudos to the GOP for holding firm on the Garland nomination — the new president will have the opportunity to appoint at least one, and maybe three or four justices during two full terms. If he gets it right, he can put the Court out of the reach of the Left for a lifetime, thus depriving them of their favorite super-legislature and restoring the Court to its proper judicial function.