Exasperated by a long-running fight over judicial nominees, a Republican senator pleaded with his colleagues to confirm Merrick Garland to the U.S. Court of Appeals for the District of Columbia, often considered the second most important court in the nation.
“Playing politics with judges is unfair, and I am sick of it,” Sen. Orrin Hatch of Utah said prior to the vote on March 19, 1997.
Fast forward 19 years and Garland is President Barack Obama’s nominee for the Supreme Court, ensnared in a high-stakes, election-year fight over a vacancy that Republicans insist should be filled by the next president. No confirmation hearings and no votes this year, says the GOP in its blanket argument that the American people must have a say in November elections before a judge is chosen.
Republicans who once praised Garland — and voted for him — say it’s not the person, it’s the principle.
“He may very well be a very good nominee, I voted for him earlier,” said Sen. Pat Roberts of Kansas. “But it’s not about the nominee, it’s about the process.”
In fact, seven current Republican senators voted in 1997 to confirm Garland, a former Justice Department attorney who coordinated the prosecution in the Oklahoma City bombing case and was tapped by President Bill Clinton for the appeals court. The nomination had been caught up in an extended, nearly two-year dispute over the size of the lower court until Hatch, then the powerful chairman of the Judiciary Committee, negotiated to secure a vote.
“I would like to see one person come to this floor and say one reason why Merrick Garland does not deserve this position,” Hatch challenged his fellow senators. Of Garland, Hatch said: “I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the court.”
The Senate confirmed Garland, 76-23.
The other Republican senators still in office who voted for Garland were Indiana Sen. Dan Coats, Mississippi Sen. Thad Cochran, Maine Sen. Susan Collins, Arizona Sen. John McCain and Oklahoma Sen. James Inhofe.
Today, several say they see no inconsistency between their 1997 votes and 2016 opposition, engineered by Senate Majority Leader Mitch McConnell, R-Ky.
Hatch said the nominee would be better served after this “toxic” election.
“There’s a difference between the courts,” he says of the appeals court and the Supreme Court. “This is the court of final resort and it makes final decisions on what the law is.”
He also bemoaned the current climate, saying he was “sick and tired of the Supreme Court being treated like a political football.”
The White House is certainly not backing down despite the strong opposition. Garland returns to Capitol Hill on Tuesday for meetings with two Democratic senators — Chuck Schumer of New York and Bob Casey of Pennsylvania.
In the meantime, some of the seven GOP senators are showing more openness to Garland than McConnell, who has declined to even meet with him. Hatch says he will meet with Garland and could envision hearings and possibly a vote after the election, if a Democrat wins the presidency, although McConnell has rejected that idea.
Collins has called for regular order, including hearings, and says she will meet with Garland in April.
Inhofe, too, said he would be open to meeting with Garland, though he made it clear it wouldn’t influence his vote. He said he talked to Garland on the phone shortly after Obama nominated him, telling him, “it has nothing to do with you,” but he will oppose his nomination.
Collins, who was elected to the Senate in 1996, says Garland’s confirmation was her first vote on a judicial nomination.
“I felt he was extremely well-qualified, I liked his prosecutorial background, I was aware of his work to put in prison the Oklahoma city bomber as well as Marion Barry, and he was very well-regarded,” Collins said.
As a prosecutor, Garland led the investigation into the Oklahoma City bombing and prosecutions and also did early work on the drug case against then-D.C. Mayor Marion Barry.
Sens. Coats and McCain declined questions about Garland’s nomination last week. Cochran’s office would not comment on the 1997 vote.
The Republicans’ opposition to a Supreme Court nominee that they supported for a lower court position has some precedent. Seven Republicans who voted to confirm Sonia Sotomayor as an appeals court judge in 1998 were still in the Senate when Obama nominated her for the Supreme Court in 2009, and three of them — including Hatch and Cochran — voted against her. Collins voted to confirm Sotomayor both times.
In 1997, two Republicans who voted against Garland were McConnell and current Judiciary Committee Chairman Chuck Grassley of Iowa. McConnell didn’t speak on the nomination then, but Grassley made it clear his objections were not personal, but about the size of the court.
“Mr. Garland seems to be well-qualified and would probably make a good judge — in some other court,” Grassley said.
Associated Press writers Alan Fram and Kathleen Hennessey contributed to this report.
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