Alberto Gonzales: Give Judge Garland a vote

Wednesday morning, President Obama discharged his constitutional duty and nominated Judge Merrick Garland to fill the vacancy on the U.S. Supreme Court unexpectedly created by the death of Justice Antonin Scalia. The Senate Republican majority has vowed they will not allow a hearing or a floor vote for Garland, arguing that the American people should have the opportunity to express their views about the vacancy in the upcoming presidential election.

Other than empowering the Senate to advise and consent, the Constitution is silent as to when or how the Senate is to consider a nomination to our federal courts. Even the most ardent Obama supporter has to concede that the Constitution does not expressly prohibit the Senate from refusing to hold a hearing on an election-year nominee. On the other hand, the Constitution does not give the American people the power to choose Supreme Court nominees. That power resides with the president, along with the advice and consent of the Senate.

Senate Republicans legitimately may choose to wait for the election before deciding whether to move forward with the nomination. However, in doing so, they risk charges of playing politics, and if Americans believe the nominee is not being treated fairly, a lengthy delay could potentially jeopardize control of the Senate. Furthermore, the longer the Scalia seat remains vacant, the greater the likelihood the court will decide more cases by a 4-4 vote. The court will be unable to fulfill its role as the framers of the Constitution intended on fundamental issues ranging from abortion rights to affirmative action and limits on presidential power.

With due respect to my fellow Republicans, this is not only about allowing American voters to express their will. Many voters are truly uninformed about the role or work of the Supreme Court, and relatively few will cast their vote based on a presidential nominee’s views of the court. Rather, this fight is much more about the future direction of the jurisprudence of this country and the application of the Constitution to our daily lives.

However, instead of simply refusing to act, I urge Senate Republicans, when prepared, to provide a hearing and floor vote. The president has nominated someone who is capable of doing the job by virtue of intellect, education and experience. Judge Garland has a reputation for integrity and likely has the character to withstand the scrutiny that comes with the confirmation process. So if Republican senators were to oppose his nomination, it would legitimately be based on ideology or the manner in which the nominee will discharge his oath as a federal judge.

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For example, if Garland does not embrace the limited role of the judiciary in our system of government, nor is he willing to exercise restraint and give appropriate deference to the decisions of the elected branches of government, then the Senate should reject him. If the nominee says he is comfortable in recognizing new fundamental rights in the Constitution beyond its plain words or believes it is appropriate to rely on life experiences rather than the law in order to decide a case, then the Senate should reject him. If the nominee is willing to ignore the plain meaning of a statute or the Constitution in order to accommodate trending societal norms, then the Senate should reject him.

In voting against such a nominee, Senate Republicans will be legitimately exercising their authority and responsibility of checks and balances. It will take courage to vote down a nominee of a popular president, the type of courage that sadly has been missing in Washington in recent times. However, senators take an oath to support and defend the Constitution. That oath is a promise by each senator to discharge his or her duties with total fidelity and true allegiance to the Constitution.

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Of course, Democrats will accuse Senate Republicans of playing politics if they refuse to confirm Garland. However, the American people surely already understand that Democrats are as guilty as Republicans might be in “politicizing” the confirmation process. In 2006, then-Sen. Obama joined in an attempted filibuster of President George W. Bush’s nomination of Judge Samuel Alito to the high court. In 1992, Democratic Senate Judiciary Committee Chairman Joe Biden argued that the Senate should not even schedule a confirmation hearing for anyone nominated to the Supreme Court near the end of a president’s term of office.

Hypocritically, Senate Democrats are howling about Republicans politicizing the confirmation process. Yet no one seriously doubts that if Democrats were in the majority, they'd attempt to block an election-year nomination by a Republican president for this critical swing seat on the court.

As counsel to President Bush, I witnessed firsthand the obstruction by Senate Democrats of well-qualified judicial nominees based on politics. Members of the Senate may not value being consistent and fair, but I do. I believed Senate obstruction through inaction was wrong when I was on the other side of the process, and I believe it is wrong today. The president has done his job and, when the Senate is prepared, members should do theirs.

Alberto R. Gonzales, former U.S. attorney general and White House counsel in the George W. Bush administration, is the dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.

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