The U.S. Supreme Court building in the morning hours of March 16.

The U.S. Supreme Court building in the morning hours of March 16.

President Obama plans to announce his nominee to fill the Supreme Court seat held by Justice Antonin Scalia who died in February. The president said his pick will be someone with “impeccable credentials,” a “consensus candidate” acceptable to both Democrats and Republicans, but Republican Senate leaders vowed not to hold hearings on any nominee because, they said, this nomination is critical to the direction of the court and is a decision that should be left to whomever wins the White House in November. Please join us to talk about President Obama’s nomination for the Supreme Court and the political battle ahead.


  • Norman Ornstein Resident scholar, American Enterprise Institute; co-author of "It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism"
  • Julie Hirschfeld Davis White House reporter, The New York Times
  • Garrett Epps Professor of law, University of Baltimore; contributing writer and Supreme Court correspondent,; author of “To An Unknown God: Religious Freedom on Trial" and "American Justice 2014: Nine Clashing Visions on the Supreme Court."


  • 11:06:02

    MS. DIANE REHMAnd thanks for joining us. I'm Diane Rehm. President Obama is just about to announce his nominee for the Supreme Court. It's Merrick Garland, chief judge of the D.C. Circuit Court of Appeals. Let's hear the President now.

  • 11:06:26

    PRESIDENT BARACK OBAMAToday, I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court. Now, in law enforcement circles and in the legal community at large, Judge Garland needs no introduction.   But I’d like to take a minute to introduce Merrick to the American people, whom he already so ably serves. He was born and raised in the Land of Lincoln -- in my hometown of Chicago, in my home state of Illinois.

  • 11:07:12

    PRESIDENT BARACK OBAMAHis mother volunteered in the community, his father ran a small business out of their home.  Inheriting that work ethic, Merrick became valedictorian of his public high school.  He earned a scholarship to Harvard, where he graduated summa cum laude.  And he put himself through Harvard Law School by working as a tutor, by stocking shoes in a shoe store, and, in what is always a painful moment for any young man, by selling his comic book collection.  It's tough.  Been there.

  • 11:07:50

    PRESIDENT BARACK OBAMAMerrick graduated magna cum laude from Harvard Law, and the early years of his legal career bear all the traditional marks of excellence.  He clerked for two of President Eisenhower’s judicial appointees, first for a legendary judge on the Second Circuit, Judge Henry Friendly, and then for Supreme Court Justice William Brennan.  Following his clerkships, Merrick joined a highly regarded law firm, with a practice focused on litigation and pro bono representation of disadvantaged Americans.

  • 11:08:20

    PRESIDENT BARACK OBAMAWithin four years, he earned a partnership -- the dream of most lawyers. But in 1989, just months after that achievement, Merrick made a highly unusual career decision.  He walked away from a comfortable and lucrative law practice to return to public service. Merrick accepted a low-level job as a federal prosecutor in President George H.W. Bush’s administration.  He took a 50-percent pay cut, traded in his elegant partner’s office for a windowless closet that smelled of stale cigarette smoke.

  • 11:08:58

    PRESIDENT BARACK OBAMAThis was a time when crime here in Washington had reached epidemic proportions, and he wanted to help. And he quickly made a name for himself, going after corrupt politicians and violent criminals. His sterling record as a prosecutor led him to the Justice Department, where he oversaw some of the most significant prosecutions in the 1990s, including overseeing every aspect of the federal response to the Oklahoma City bombing.

  • 11:09:30

    PRESIDENT BARACK OBAMAIn the aftermath of that act of terror, when 168 people, many of them small children, were murdered, Merrick had one evening to say goodbye to his own young daughters before he boarded a plane to Oklahoma City.  And he would remain there for weeks.  He worked side-by-side with first responders, rescue workers, local and federal law enforcement.  He led the investigation and supervised the prosecution that brought Timothy McVeigh to justice.

  • 11:10:03

    PRESIDENT BARACK OBAMABut perhaps most important is the way he did it.  Throughout the process, Merrick took pains to do everything by the book.  When people offered to turn over evidence voluntarily, he refused, taking the harder route of obtaining the proper subpoenas instead, because Merrick would take no chances that someone who murdered innocent Americans might go free on a technicality.

  • 11:10:30

    PRESIDENT BARACK OBAMAMerrick also made a concerted effort to reach out to the victims and their families, updating them frequently on the case’s progress.  Everywhere he went, he carried with him in his briefcase the program from the memorial service with each of the victims’ names inside, a constant, searing reminder of why he had to succeed. Judge Garland has often referred to his work on the Oklahoma City case as, and I quote, "the most important thing I have ever done in my life."

  • 11:11:05

    PRESIDENT BARACK OBAMAAnd through it all, he never lost touch with that community that he served. It’s no surprise then, that soon after his work in Oklahoma City, Merrick was nominated to what’s often called the second highest court in the land, the D.C. Circuit Court.  During that process, during that confirmation process, he earned overwhelming bipartisan praise from senators and legal experts alike.  Republican Senator Orrin Hatch, who was then chairman of the Senate Judiciary Committee, supported his nomination.

  • 11:11:45

    PRESIDENT BARACK OBAMABack then, he said, "In all honesty, I would like to see one person come to this floor and say one reason why Merrick Garland does not deserve this position."  He actually accused fellow Senate Republicans trying to obstruct Merrick’s confirmation of "playing politics with judges."  And he has since said that Judge Garland would be a "consensus nominee" for the Supreme Court who "would be very well supported by all sides," and there would be "no question" Merrick would be confirmed with bipartisan support.

  • 11:12:20

    PRESIDENT BARACK OBAMAUltimately, Merrick was confirmed to the D.C. Circuit, the second highest court in the land, with votes from a majority of Democrats and a majority of Republicans.  Three years ago, he was elevated to Chief Judge.  And in his 19 years on the D.C. Circuit, Judge Garland has brought his trademark diligence, compassion and unwavering regard for the rule of law to his work. On a circuit court known for strong-minded judges on both ends of the spectrum, Judge Garland has earned a track record of building consensus as a thoughtful, fair-minded judge who follows the law.

  • 11:13:05

    PRESIDENT BARACK OBAMAHe’s shown a rare ability to bring together odd couples, assemble unlikely coalitions, persuade colleagues with wide-ranging judicial philosophies to sign on to his opinions. And this record on the bench speaks, I believe, to Judge Garland’s fundamental temperament, his insistence that all views deserve a respectful hearing.  His habit, to borrow a phrase from former Justice John Paul Stevens, "of understanding before disagreeing," and then disagreeing without being disagreeable.

  • 11:13:41

    PRESIDENT BARACK OBAMAIt speaks to his ability to persuade, to respond to the concerns of others with sound arguments and airtight logic.  As his former colleague on the D.C. Circuit, and our current Chief Justice of the Supreme Court, John Roberts, once said, "Any time Judge Garland disagrees, you know you’re in a difficult area." At the same time, Chief Judge Garland is more than just a brilliant legal mind.  He’s someone who has a keen understanding that justice is about more than abstract legal theory, more than some footnote in a dusty casebook.

  • 11:14:19

    PRESIDENT BARACK OBAMAHis life experience, his experience in places like Oklahoma City, informs his view that the law is more than an intellectual exercise.  He understands the way law affects the daily reality of people’s lives in a big, complicated democracy and in rapidly-changing times.  And throughout his jurisprudence runs a common thread, a dedication to protecting the basic rights of every American, a conviction that in a democracy, powerful voices must not be allowed to drown out the voices of everyday Americans.

  • 11:14:58

    PRESIDENT BARACK OBAMATo find someone with such a long career of public service, marked by complex and sensitive issues, to find someone who just about everyone not only respects, but genuinely likes, that is rare.  And it speaks to who Merrick Garland is, not just as a lawyer, but as a man.  People respect the way he treats others, his genuine courtesy and respect for his colleagues and those who come before his court.  They admire his civic-mindedness, mentoring his clerks throughout their careers, urging them to use their legal training to serve their communities, setting his own example by tutoring a young student at a Northeast D.C. elementary school each year for the past 18 years.

  • 11:15:47

    PRESIDENT BARACK OBAMAThey’re moved by his deep devotion to his family, Lynn, his wife of nearly 30 years, and their two daughters, Becky and Jessie.  As a family, they indulge their love of hiking and skiing and canoeing, and their love of America by visiting our national parks. People respect Merrick’s deep and abiding passion for protecting our most basic constitutional rights.  It’s a passion, I’m told, that manifested itself at an early age.  And one story is indicative of this, is notable.

  • 11:16:25

    PRESIDENT BARACK OBAMAAs valedictorian of his high school class, he had to deliver a commencement address.  The other student speaker that day spoke first and unleashed a fiery critique of the Vietnam War.  Fearing the controversy that might result, several parents decided to unplug the sound system, and the rest of the student’s speech was muffled. And Merrick didn’t necessarily agree with the tone of his classmate’s remarks, nor his choice of topic for that day.

  • 11:16:54

    PRESIDENT BARACK OBAMABut stirred by the sight of a fellow student’s voice being silenced, he tossed aside his prepared remarks and delivered instead, on the spot, a passionate, impromptu defense of our First Amendment rights. It was the beginning of a lifelong career, as a lawyer, and a prosecutor, and as a judge, devoted to protecting the rights of others.  And he has done that work with decency and humanity and common sense, and a common touch.  And I’m proud that he’ll continue that work on our nation’s highest court.

  • 11:17:38

    PRESIDENT BARACK OBAMAI said I would take this process seriously and I did.  I chose a serious man and an exemplary judge, Merrick Garland.  Over my seven years as President, in all my conversations with senators from both parties in which I asked their views on qualified Supreme Court nominees, this includes the previous two seats that I had to fill, the one name that has come up repeatedly, from Republicans and Democrats alike, is Merrick Garland.

  • 11:18:16

    PRESIDENT BARACK OBAMANow, I recognize that we have entered the political season , or perhaps, these days it never ends, a political season that is even noisier and more volatile than usual.  I know that Republicans will point to Democrats who’ve made it hard for Republican Presidents to get their nominees confirmed.  And they’re not wrong about that.  There’s been politics involved in nominations in the past.  Although it should be pointed out that, in each of those instances, Democrats ultimately confirmed a nominee put forward by a Republican President.

  • 11:19:00

    PRESIDENT BARACK OBAMAI also know that because of Justice Scalia’s outsized role on the Court and in American law, and the fact that Americans are closely divided on a number of issues before the Court, it is tempting to make this confirmation process simply an extension of our divided politics, the squabbling that’s going on in the news every day.  But to go down that path would be wrong.  It would be a betrayal of our best traditions, and a betrayal of the vision of our founding documents.

  • 11:19:41

    PRESIDENT BARACK OBAMAAt a time when our politics are so polarized, at a time when norms and customs of political rhetoric and courtesy and comity are so often treated like they’re disposable, this is precisely the time when we should play it straight, and treat the process of appointing a Supreme Court justice with the seriousness and care it deserves.  Because our Supreme Court really is unique.  It’s supposed to be above politics.  It has to be.  And it should stay that way.

  • 11:20:22

    PRESIDENT BARACK OBAMATo suggest that someone as qualified and respected as Merrick Garland doesn't even deserve a hearing, let alone an up or down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise, that would be unprecedented. To suggest that someone who has served his country with honor and dignity, with a distinguished track record of delivering justice for the American people might be treated, as one Republican leader stated, as a political piñata, that can't be right.

  • 11:21:00

    PRESIDENT BARACK OBAMATomorrow Judge Garland will travel to the Hill to begin meeting with senators one on one. I simply ask Republicans in the Senate to give him a fair hearing and then an up or down vote. If you don't, then it will not only be an abdication of the Senate's constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair. It will mean everything is subject to the most partisan of politics, everything. It will provoke an endless cycle of more tit for tat and make it increasingly impossible for any president, Democrat or Republican, to carry out their constitutional function.

  • 11:21:53

    PRESIDENT BARACK OBAMAThe reputation of the Supreme Court will inevitably suffer. Faith in our justice system will inevitably suffer. Our democracy will ultimately suffer, as well.

  • 11:22:17

    PRESIDENT BARACK OBAMAI have fulfilled my constitutional duty. Now it's time for the Senate to do theirs. Presidents do not stop working in the final year of their term. Neither should a senator. I know that tomorrow the Senate will take a break and leave town on recess for two weeks. My earnest hope is that senators take that time to reflect on the importance of this process to our democracy, not what's expedient, not what's happening at the moment. What does this mean for our institutions, for our common life, the stakes, the consequences, the seriousness of the job we all swore an oath to do?

  • 11:23:05

    PRESIDENT BARACK OBAMAAnd when they return, I hope that they'll act in a bipartisan fashion. I hope they are fair, that's all, I hope they are fair. As they did when they confirmed Merrick Garland to the D.C. Circuit, I ask that they confirm Merrick Garland now to the Supreme Court so that he can take his seat in time to fully participate in its work for the American people this fall. He is the right man for the job. He deserves to be confirmed. I could not be prouder of the work that he has already done on behalf of the American people. He deserves our thanks and he deserves a fair hearing. And with that, I'd like to invite Judge Garland to say a few words.

  • 11:24:30

    JUDGE MERRICK GARLANDThank you, Mr. President. This is the greatest honor of my life other than Lynn agreeing to marry me 28 years ago. It's also the greatest gift I've ever received, except, and there's another caveat, the birth of our daughters Jesse and Becky. As my parents taught me by both words and deeds, a life of public service is as much a gift to the person who serves as it is to those he is serving. And for me there could be no higher public service than serving as a member of the United States Supreme Court.

  • 11:25:07

    JUDGE MERRICK GARLANDMy family deserves much of the credit for the path that led me here. My grandparents left the pale of settlement, the border of Western Russia and Eastern Europe, in the early 1900s, fleeing anti- Semitism and hoping to make a better life for their children in America.

  • 11:25:26

    JUDGE MERRICK GARLANDThey settled in the Midwest, eventually making their way to Chicago. There my father, who ran the smallest of small businesses from a room in our basement, took me with him as he made the rounds to his customers, always impressing upon me the importance of hard work and fair dealing. There my mother headed the local PTA and school board and directed a volunteer services agency, all the while instilling in my sisters and me the understanding that service to the community is a responsibility above all others.

  • 11:26:06

    JUDGE MERRICK GARLANDEven now, my sisters honor that example by serving the children of their communities. I know that my mother is watching this on television and crying her eyes out. So are my sisters, who have supported me in every step I have ever taken. I only wish that my father were here to see this today. I also wish that we hadn't taught my older daughter to be so adventurous that she would be hiking in the mountains, out of cell service range, when the president called.

  • 11:26:44

    JUDGE MERRICK GARLANDIt was the sense of responsibility to serve the community instilled by my parents that led me to leave my law firm to become a line prosecutor in 1989. There one of my first assignments was to assist in the prosecution of a violent gang that had come down to the District from New York, took over a public housing project and terrorized the residents. The hardest job we faced was persuading mothers and grandmothers that if they testified, we would be able to keep them safe and convict the gang members. We succeeded only by convincing witnesses and victims that they could trust that the rule of law would prevail.

  • 11:27:30

    JUDGE MERRICK GARLANDYears later, when I went to Oklahoma City to investigate the bombing of the federal building, I saw up close the devastation that can happen when someone abandons the justice system as a way of resolving grievances and instead takes matters into his own hands. Once again I saw the importance of assuring victims and families that the justice system could work. We promised that we would find the perpetrators, that we would bring them to justice and that we would do it in a way that honored the Constitution.

  • 11:28:08

    JUDGE MERRICK GARLANDThe people of Oklahoma City gave us their trust, and we did everything we could to live up to it. Trust that justice will be done in our courts, without prejudice or partisanship, is what in a large part distinguishes this country from others. People must be confident that a judge's decisions are determined by the law and only the law. For a judge to be worthy of such trust, he or she must be faithful to the Constitution and to the statutes passed by the Congress. he or she must put aside his personal views or preferences and follow the law, not make it.

  • 11:28:56

    JUDGE MERRICK GARLANDFidelity to the Constitution and the law has been the cornerstone of my professional life, and is the hallmark of the kind of judge I have tried to be for the past 18 years. If the Senate sees fit to confirm me to the position for which I have been nominated today, I promise to continue on that course. Mr. President, it's a great privilege to be nominated by a fellow Chicagoan. I am grateful beyond words for the honor you have bestowed upon me.

  • 11:29:33

    OBAMACongratulations to you. Good job.

  • 11:29:38

    REHMAnd you've been hearing the voice of Merrick Garland. President Obama has just nominated him to fill the seat of the Supreme Court after the death of Justice Antonin Scalia. And now here with me to talk about the president's nomination, Norman Ornstein. He's resident scholar at the American Enterprise Institute. Joining us from her office here in Washington, Julie Hirschfeld Davis of The New York Times and Garrett Epps, professor of law at the University of Baltimore

  • 11:30:32

    REHMNorm Ornstein, let me start with you, your reaction to the nomination of Merrick Garland.

  • 11:30:42

    MR. NORMAN ORNSTEINDiane, I know Merrick Garland and his wife Lynn, and there's a good reason why he's been on every short list for years for the Supreme Court. And I think really there are two reasons the president picked him. Some Democrats are not going to be happy with this. He's older, he's 63. They now want to pick people in their 40s. If they could, they'd pick people in their 20s so they'd be on the court much longer. He is not a strong liberal. He's very much a pragmatist and a centrist.

  • 11:31:14

    MR. NORMAN ORNSTEINBut I think the president interviewed, and I'm sure he hit it off with Merrick Garland, with his intellect, with his life story, and at the same time he wants to win. Even though the chances are fairly slim that the Senate is going to confirm anybody nominated by the president, it's going to be tougher to deny Merrick Garland a hearing or to vote against him than any of the other possibilities, and you saw from this powerful speech by the president...

  • 11:31:43


  • 11:31:43

    ORNSTEINThat the pressure is going to be enormous on Republicans in the Senate, and that's going to be a very interesting dynamic for the next few months.

  • 11:31:53

    REHMJulie Hirschfeld Davis, talk about why the president nominated him today.

  • 11:32:01

    MS. JULIE HIRSCHFELD DAVISWell, it's clear, as Norm said, that the president feels strongly about Judge Garland. He was on both of his previous short lists the last two times he had the opportunity to fill a vacancy on the Supreme Court. So he clearly respects him as a judge, he thinks he's very qualified, has been, you know, almost on the brink of naming him in the past. He is clearly someone the president feels very comfortable with.

  • 11:32:26

    MS. JULIE HIRSCHFELD DAVISBut I do think you can't possibly overstate the degree to which his profile, he's seen as a moderate, he has drawn bipartisan support in the past for his confirmation in his current seat on the appellate court, is a big part of the calculus here. I think that the White House believes that it makes it even more difficult than it otherwise should be for Republicans to refuse to, you know, go forward with hearings or even potentially to meet with him.

  • 11:32:56

    MS. JULIE HIRSCHFELD DAVISThe optics of it are very bad for them, and I think they think that this maximizes the possibility that they might actually crack and at least start to hold hearings, and then once that process gets going that it will snowball and potentially lead to at least a vote.

  • 11:33:15

    MS. JULIE HIRSCHFELD DAVISI also think that, you know, there's a sense that if the Republicans are facing -- you know, if we do get to November, and there haven't been hearings, if they're facing the prospect of a Democratic president in 2017, that they will, you know, kind of look around, particularly if they've lost the Senate, and say, well, this person may be as good as we're going to get. We may get a much more liberal nominee next year, when a Democratic president takes office, and so let's just go with this person, and we'll go from there.

  • 11:33:45

    REHMAll right, and you're listening to the Diane Rehm Show. And to you, Garrett Epps, I'm really wondering about the timing here and why the president chose today to name Merrick Garland.

  • 11:34:04

    MR. GARRETT EPPSWell, I have no insight into what's going on inside the White House, but I can certainly understand why they waited until after Super Tuesday so that we didn't have a rash of stories about people going to the polls in Ohio and Florida. And even today the story is struggling a little bit to get play on the cable news channels.

  • 11:34:30

    MR. GARRETT EPPSI do know that early in March, about March 3, the president announced that he -- or the White House announced that they had sent names for vetting and that it would take two weeks. And so if you count forward 14 days, we're almost exactly two weeks later. So, you know, perhaps the simplest explanation is the right one, you know, that it just -- they went full-speed ahead, and this is as fast as they could do it.

  • 11:34:53

    REHMFrom your perspective, Garrett Epps, did the president surprise people by naming Merrick Garland when you had so many other qualified candidates out there?

  • 11:35:12

    EPPSI think so. I mean, I think if you followed the discussion among those who know and claim to know over the three or four days prior to the nomination, there seemed to be an emerging consensus that it would be Judge Srinivasan of the D.C. Circuit, who is, like Garland, widely respected, seen as a moderate, was approved unanimously, unlike Judge Garland, and is 49 years old and with a demographic that, you know, could appeal to groups that might be significant in the upcoming election and thus might put more pressure on senators from swing states.

  • 11:35:51

    EPPSAnd instead the president seems to have gone with, you know, what undoubtedly to him and to many just seems like a sort of straight-head, Boy Scout, pure, meritocratic decision without a lot of political calculation going into it.

  • 11:36:06

    REHMAnd you, Norm, are you at all surprised?

  • 11:36:12

    ORNSTEINYou know, I -- we didn't know which of the six he would pick. I actually thought in many ways the most politically astute decision would have been Jane Kelly, a judge from Iowa, strongly supported in the past by Charles Grassley, the chairman of the Judiciary Committee, who is up for re-election, who had been a public defender. And I actually think that one of the reasons that Kelly didn't make it to the final three was a really, a word I shouldn't use but will, disgusting campaign by some conservative groups because she had defended people and performed her duties.

  • 11:36:47

    ORNSTEINBut I think Garrett is absolutely right. This was a choice made because the president thought he was the best person to be on the court.

  • 11:36:56

    REHMNorman Ornstein of the American Enterprise Institute, short break, we'll be right back.

  • 11:39:31

    REHMAnd welcome back. As I'm sure you know by now, the president has just announced his nominee for the Supreme Court to fill the vacancy left by Antonin Scalia. His nominee is Merrick Garland, chief judge of the D.C. Circuit Court of Appeals. Norm Ornstein, Senate Republicans have said this nomination is so important it should be left to the next president. This puts Republicans in a real bind.

  • 11:40:12

    ORNSTEINThey're in a vise. And this is, in many ways, a self-inflicted wound. We have to keep in mind, Diane, that within minutes of the announcement that Justice Scalia had died, Mike Lee, a senator from Utah on the Judiciary Committee, tweeted, "There's less than zero chance of any Obama nominee going through." Within an hour, Senate Majority Leader Mitch McConnell basically doubled down on that.

  • 11:40:37

    ORNSTEINThen they said they wouldn't hold a hearing. Senator Grassley, the chairman of the Judiciary Committee, said, "I won't even meet with anybody." And once they're in that position, with outside groups -- and this is something where you have Republican leaders, the establishment as it were, captives of a radical right that is pushing them to never give up and never surrender. If they concede at all on this, they're gonna get tremendous flak from their own Party. If they don't, to the rest of the country it's gonna look like they're basically doing something that is illegitimate.

  • 11:41:16

    REHMJulie, how do you see the scenario going forward?

  • 11:41:22

    DAVISWell, I think what we're going to see, at least in the short term, is a very highly politicized, exactly what the president essentially just finished saying he did not want to see around a Supreme Court nomination. Norm is right, though. Groups on the right are already mobilized, not only to oppose the nominee -- and they've been putting out information about Judge Garland and Judge Srinivasan and all of the folks that we thought were on the short list now for a few days, about how they're not moderates at all. They're actually liberal extremists.

  • 11:41:54

    DAVISBut indeed for, you know, just pushing forward, no hearing process at all, and at postponing this whole confirmation fight until after the presidential election. But then you have an equally mobilized, maybe even more so, group on the left of former Obama administration officials and all of the progressive groups and the progressive judicial advocacy community, that are just ready to pummel Republican senators for refusing to let the nominee go forward. So I think we're gonna see a pretty nasty battle.

  • 11:42:27

    DAVISYou heard the president say, you know, go home for your Senate recess and think about this. Well, they're not just gonna be thinking about it in a vacuum, they're gonna be probably having ads run against them and a lot of very tough criticism coming, sort of spread by some of these groups through their grassroots, and be under a lot of pressure to change their stance. But I'm not sure that it's going to matter because it is sort of a litmus test issue for these Republicans. They've put themselves in this very absolute position and it's very difficult for them now to reverse course.

  • 11:42:58

    REHMAnd, Garrett Epps, suppose -- let's just speculate. Suppose that Republicans realize that they're going to lose the Senate or they do lose the Senate, what could or might happen in a lame duck session?

  • 11:43:22

    EPPSWell, you know, predicting this Senate is a chancy operation. And remember, this, you know, the Republican majority has, you know, twice walked up or crossed over the line of a government shutdown simply in order not to violate some small point of conservative orthodoxy. So it could be that the kind of instrumental calculation you describe, we lost the election, we lost the Senate, it's gonna be worse, wouldn't be enough to get Republicans to crossover on the grounds that they, individually, have to worry about being primaried from the far right at home.

  • 11:44:01

    EPPSAnd so if the Senate is paralyzed, institutionally, between now and November, I don't really think there's a huge reason for optimism that they will suddenly discover their function between November and January.

  • 11:44:18

    REHMHere's a tweet from David Axelrod, who was on the White House staff with President Obama, who was very influential in getting him elected. He says, "Despite his record," and he's talking about Merrick Garland, he said, "Despite his record and past overwhelming Senate confirmation, I would not expect many laurels from the GOP for Garland. The lid is on." That's from David Axelrod.

  • 11:44:57

    ORNSTEINAnd he's right, of course. And I think Garrett is absolutely right, too, that they really do not want to enrage their own base further. And remember, we're gonna have presidential candidates who are gonna continue to get most of the attention here. And the prime ones are Ted Cruz and Donald Trump. You can be sure they're gonna be saying don't give an inch on this.

  • 11:45:22

    ORNSTEINNow, I do think in a lame duck session, if they're faced with what is a very probable scenario, certainly a very possible one, Hillary Clinton wins and the Republicans lose the Senate -- and remember, this nomination is gonna cause some heartburn for Republicans running for the Senate from blue states. No one more than Mark Kirk of Illinois, at this point.

  • 11:45:44

    ORNSTEINIf they lose the Senate and they're faced with the prospect of Hillary Clinton picking somebody much more liberal than Merrick Garland and much younger, and with the untenable situation of trying to filibuster for years after they've said let the next president decide, they, you know, the calculus would be -- the rational calculus, go for Garland in the lame duck. But it may well be that the pressure from this base of angry people that they have encouraged for years and now see turning on them, will make it difficult even to do that.

  • 11:46:20

    REHMAll right. Let's hear from our listeners. First, Justin, here in Washington, D.C. You're on the air.

  • 11:46:30

    JUSTINThanks, Diane.

  • 11:46:31


  • 11:46:31

    JUSTINI had a question. The president seemed to focus on Garland's experience with domestic terrorism. I'm wondering if that's because he's foreshadowing what the high court, the issues the high court will have to face in the future, domestic and international terrorism. Thank you.

  • 11:46:44

    REHMJulie, do you want to comment?

  • 11:46:47

    DAVISWell, I certainly think that he expects that to be part of the slate of issues that, you know, this next justice is gonna have to confront, along with the rest of the Court. But I also think that it's sort of a major selling point from the White House perspective and from the president's perspective, that he does have this law and order background. His work on the Oklahoma City bombing is, you know, sort of a -- was sort of a defining moment in his legal career.

  • 11:47:12

    DAVISAnd you heard the president talk about, you know, he dropped his lucrative practice to go and, you know, do some of this work. So, again, I think this is about sort of making it clear to the public what the thinking was behind choosing him, that he is a fair-minded person, that he is a hard-nosed legal mind, and that, you know, some of these issues that are going to come before the Court inevitable, given the age that we're in, of terrorism and all these questions of, you know, privacy and the like, that he has a long record of working on those issues.

  • 11:47:47

    DAVISAnd it's also designed to agree -- to appeal to Republicans. I mean, they're going to be going to the public and saying this is the person that Republicans want to turn back. This person, who has a strong record on all of these law enforcement and terrorism issues, that's gonna be a big part. His personal story is gonna be a big part of this. And I think that's one of the reasons he's focused on it.

  • 11:48:06

    REHMGarrett Epps, how important to the future of the Supreme Court is this next justice likely to be, whether it's Merrick Garland or someone else?

  • 11:48:23

    EPPSWell, I think the answer is important, but not in the sense in which this battle line is being drawn. The Republicans are suggesting that, you know, that the Democrats will now control the Court for the next generation and that it's -- they're taking a conservative seat that belonged to Justice Scalia and flipping the Court and that this will be a catastrophe for conservatives.

  • 11:48:48

    EPPSAnd I think that if you can read an actuarial table, you'd realize that, you know, the future of the Court is gonna be settled over the next six to eight years, not, you know, within the next six to eight months. Because we have, you know, we lost Justice Scalia, who was nearly 80. And that it's hardly surprising when people get to that stage of life that they may die. We have three other justices who are in that same range.

  • 11:49:15

    EPPSJustice Ginsburg, who I believe is having a birthday today, is well into her 80's. So there's gonna be a generational shift on the Court over the next four or five, six, seven years that will, in a much more complex way, determine the future of the Court. And it would be true even if -- the shift in the Court would be true even if there were a conservative nominee to replace Justice Scalia. Because what's become clear in the few weeks since his death is the extent to which his intellect and his persona dominated the operations of the Court. And this is a very different Court already.

  • 11:49:57

    REHMAll right. And we are told that Senator Mitch McConnell is speaking now, on the floor. He has said, "President Obama and his allies will pretend that this is about a person. But the Biden Rule reminds us it's about a principle and not a person. It seems clear Obama made this nomination not with the intent to see this nominee confirmed, but in order to politicize it ahead of the presidential election." Doesn't seem as though there's much movement in Mitch McConnell's mind, Norm.

  • 11:50:46

    ORNSTEINHe's doubling down, which is not a great surprise here.

  • 11:50:47


  • 11:50:49

    ORNSTEINAnd one of the things we have to keep in mind, Diane, is that for McConnell, this becomes personal in another way. Nothing matters to him more than keeping the Citizens United decision in place. McConnell's greatest defeat in his career was losing on the McCain-Feingold bill in the Supreme Court. And Citizens United gave him new life. He doesn't want that to go so he will double down. Remember, the Biden Rule, which was not a rule, was not about whether you would entertain a nomination, hold a hearing, take a vote.

  • 11:51:24

    ORNSTEINIt was about whether you would want to confirm somebody in that final year. And they're taking it to a much different level. And right now what the Democrats are gonna push for is you meet with Merrick Garland, as every previous nominee has seen happen with the individual members. You hold hearings. And then you bring it up for a vote. If you vote it down, then, you know, we can see what happens after that.

  • 11:51:53

    ORNSTEINAnd if they do any of those things, the Judicial Crisis Network, which is the leading force on the right pushing and, you know, with the really tough commercials and other things, the radio talk show hosts and others will say that's surrender. And so they're still in a -- they've dug themselves a hole here and it's gonna be tough to get out of it.

  • 11:52:14

    REHMAnd you're listening to "The Diane Rehm Show." Julie, we've been talking thus far about the reaction of Republicans. What about Democrats? What about liberal Democrats? What's their reaction do you believe to the nomination of Merrick Garland?

  • 11:52:36

    DAVISWell, so far Senate Democrats have been pretty united in saying this is a candidate with impeccable credentials. This is someone who is qualified to sit on the Court. Of course they're saying we want to look at his record, we want to meet with him, but they think, you know, they should absolutely go forward. And I think, you know, if you talk to Senate Democrats, they're fairly happy with this choice.

  • 11:52:55

    DAVISBecause they do feel like it's a straight down the middle one and one that will be difficult for Republicans to resist. Even though, as everyone has been saying, you know, we don't necessarily expect for them to back down. I thought it was interesting that the president said Judge Garland will be going to the Hill tomorrow.

  • 11:53:11


  • 11:53:11

    DAVISThat's pretty quickly after the announcement. And he, you know, he's gonna be knocking on doors.

  • 11:53:13

    REHMAnd aren't they on vacation after that?

  • 11:53:16

    ORNSTEINAfter tomorrow they're gone for two weeks.

  • 11:53:17

    REHMAfter tomorrow. So he's got to go tomorrow, doesn't he?

  • 11:53:22

    DAVISWell, he's got to go tomorrow if he wants to see anyone between now and two week from now.

  • 11:53:26


  • 11:53:26

    DAVISBut I also think they are looking for that visual of him, you know, going through the process, meeting with all of the Democrats, getting a, you know, a polite reception in all of their offices. And he obviously will not be getting that from Republicans. Now, we did hear from -- I did hear from a few of the, you know, more liberal progressive groups that often support President Obama, but who are disappointed with the choice of Garland.

  • 11:53:47

    DAVISThey want -- they said they wanted a -- somebody who was more of a progressive choice. And in particular they wanted an African-American woman. And a few of them put out statements this morning, after we learned that Judge Garland was the nominee, saying that they were disappointed. But they quickly added that, you know, Republicans should be fair and give this person a hearing.

  • 11:54:04

    DAVISThey did say, though, that they thought it would might -- it might be more difficult to activate the grassroots in support of this person in what is going to be a long slog to a confirmation -- if there even is one -- given that they're not particularly happy with his background. Because they don't consider him to be, you know, a liberal in the vein of what they were looking for.

  • 11:54:21

    REHMHere's a tweet from Allen, who says, "The Constitution says the vice president is president of the Senate. Could he take up that role and force a vote?" Garrett Epps?

  • 11:54:41

    EPPSThe fact that the vice president is the president of the Senate doesn't really mean anything except that if there's a 50/50 split on any measure the vice president can be present and cast the deciding vote. The rest of his role is really determined, as I understand it -- and Norm knows better than I -- by the Senate rules. And in that sense the gateway to the floor is controlled by the majority leader, which is Senator McConnell.

  • 11:55:11

    EPPSThere might be ways that President -- Vice President Biden could try to harass Senator McConnell, but I don't really see any mechanism by which he could just reach down and grab the order of business away from him.

  • 11:55:22


  • 11:55:23

    EPPSNorm, am I right?

  • 11:55:24

    ORNSTEINNo, that's absolutely right, Garrett. The majority leader has the right of recognition, and so can control the floor. The vice president can go and bump anybody out of the chair and preside. And that can mean that he can rule in particular ways. But anytime there's a ruling by the chair, a majority of the Senate can overrule that. Now, it is possible. There are some obscure elements of the rules that can push a nomination forward even if a committee has not held a hearing. But it's really tough to do and it would be unprecedented. And it wouldn't work anyhow.

  • 11:56:00

    ORNSTEINI think what's gonna happen here is they're just gonna keep pressure on to try and follow the regular order. And the goal right now is not even to get Merrick Garland confirmed. It's to have a hearing. You have a televised hearing in the Judiciary Committee, the American people see this wonderful man with a great life story and an incredible intellect, how do you then not vote on him?

  • 11:56:22

    REHMAll right. Well, we'll have to leave it there. The news, of course, President Obama has announced his nominee for the Supreme Court. It is Merrick Garland, chief judge of the D.C. Circuit Court of Appeals. Norm Ornstein, Julie Hirschfeld Davis, Garrett Epps thank you so much for being with me.

  • 11:56:49

    EPPSEnjoyed it.

  • 11:56:50

    ORNSTEINA pleasure.

  • 11:56:50

    DAVISThanks, Diane.

  • 11:56:51

    REHMAnd thanks all for listening. I'm Diane Rehm.

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