How Merrick Garland Should Respond to the Waldman Plan

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One of the latest expressions of the first three stages of grief by many on the Left in the wake of their election failures involves a plea for further descent into political disorder and national lawlessness. 

David Waldman (of the DailyKos)’s master plan goes like this: On January 3, 2017, Vice President Biden, Dick Durbin, and the Senate Democrats would exploit the few minutes immediately prior to the swearing in of the incoming class of Senators by convening for quorum during which they would vote by present plurality over the Republicans to suspend the rules and confirm Judge Merrick Garland to the Supreme Court. No hearing, no questioning, no nothing; just a straight yea vote.

Operation Eagle Claw was a better plan than this. The Senate does not ever work this way. More importantly, neither President Obama, nor Joe Biden, nor the Democrats – especially those purple-staters up for reelection in two years – is skull caved enough to try it.

But there’s a bigger principle at play here. Let’s say I’m wrong, that they actually try it and are indeed somehow capable of pulling it off. Merrick Garland himself should not accept this ostensible advice and consent, and should withdraw his name from consideration for the Court at this time.

His statement in doing so should read something like the following:

I thank President Obama for his gracious vote of confidence in my ability to serve this county and our Constitution on the highest Court in the land. Yet as flattering as it is that there are so many elected leaders who would go to such lengths to see me placed upon it, and so many citizens that would cheer for it, I cannot accept it.

Our nation is in the midst of perhaps the most contentious transition of power in living memory. It does neither our democracy nor our institutions of governance any long-term good for our political parties to employ such tactics against one another, however immediately beneficial they may be. While I would not presume to instruct the Senate on how to conduct its affairs, I must object when such conduct I find distasteful and dishonorable directly implicates me as a nominee for the Court.

I have been at the center of a confirmation controversy before. In 1997, a sizeable Senate minority voted against my confirmation to the D.C. Circuit. There, however, I could at least take comfort in knowing that their objection was not leveled at me so much as it was against the need for an eleventh seat the first place. Yet unlike 1997, if this was to be the means of my ascension to the high Court, my work, and my judicial and academic legacy there would forever bear its taint. More importantly, the reputation and autonomy of the Court is compromised when a new member is brought in under backdoor circumstances. It is one thing when a nominee is voted upon by a narrow margin, but quite another when a peaceful and cordial transition of power in the Senate is wilfully interrupted and embarrassed by a hasty, partisan plurality confirmation. I do not believe myself so important as to deserve an exemption from the cooperative spirit of our constitutional founding. The American people deserve a spirited and transparent confirmation process, and I do not believe they have been given one.

The Supreme Court of the United States is greater than any one person, even one as profoundly impactful as the man whose seat I was nominated to replace. Our republican government is greater than the confirmation process of any one person, and I refuse to pretend to be that person. If called upon again to serve on the Supreme Court, I will consider it a great honor, but for now I intend to return to my duties on the D.C. Circuit. I wish the incoming President and legislative freshmen the very best of luck, and I wish the American people blessings and good fortune in these difficult times.


Merrick Garland

– Vivek

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