logo
book Subscribe to our Magazine
    • Magazine
    • Membership
    • Donate
  • Racial Justice
  • Economic Justice
  • Climate Justice
  • Health Justice
  • Leadership
    • Grassroots Fundraising Journal
  • CONTENT TYPES
  • Podcasts
    • Tiny Spark
    • Women of Color in Power
  • Webinars
    • Free Webinars
    • Premium On-Demand Webinars
  • Membership

Will Garland Get the Opportunity to be Borked?

Michael Wyland
March 17, 2016
Share
Tweet
Share
Email
Print

Supreme Court

March 16, 2016; CNN

President Obama announced Wednesday morning that he intends to nominate Merrick Garland, the Chief Judge for the U.S. Court of Appeals for the District of Columbia, to serve as a justice on the U.S. Supreme Court. If confirmed, Garland would succeed Antonin Scalia, who passed away last month after 38 years in office.

Normally, stories like this would follow a prescribed pattern, listing qualifications, quoting ardent supporters and cautious opponents speculating on the upcoming confirmation hearings. (One interesting factoid is that Garland’s nomination will continue the Court’s religious composition as exclusively Catholic and Jewish, since the Jewish Garland would succeed the Catholic Scalia. The most recent Protestant on the Court, John Paul Stevens, retired in 2010.) But 2016 isn’t a typical year.

As NPQ wrote after Scalia’s death, Republicans are refusing to even hold hearings on a nominee until the next President takes office in early 2017. They are now referring to the “Biden rule,” after a 1992 Senate floor speech by then-Sen. Joseph Biden (D-DE), who advocated for delaying any Supreme Court appointments during the final year of the George H.W. Bush Presidency until after the 1992 elections, when Bill Clinton was elected.

Early issue-based opposition to Garland appears to center on his position on Second Amendment rights and, in particular, his actions on the appeals court relating to the Heller decision overturning Washington, D.C.’s restrictions on gun ownership by residents. The conservative Judicial Crisis Network has already announced plans to spend at least $2 million opposing Garland.

Sign up for our free newsletter

Subscribe to the NPQ newsletter to have our top stories delivered directly to your inbox.

By signing up, you agree to our privacy policy and terms of use, and to receive messages from NPQ and our partners.

Early issue-based supporters include Cecile Richards of Planned Parenthood and NARAL Pro-Choice America president Ilyse Hogue. After meetings she attended at the White House the day the nomination was announced, Richards issued a statement supporting Garland’s receiving a hearing by the Senate.

Justice Scalia’s successor has the potential to change the Court’s precarious and undependable 5-4 conservative majority into a much-more-dependable 5-4 liberal majority. This would place a host of issues important to nonprofits and civil society in play for the Court, from the Affordable Care Act (there are still challenges working their way through the courts) to union organizing, campaign finance, immigration, university admissions policies, and voter/voting qualifications. As long as the Court maintains a 4-4 split on key cases, those decisions will be delayed or lower court decisions (sometimes contradicting each other) will remain in force.

However, there may be some weakening on that strong GOP opposition. NPR is reporting that some Senate Republicans have signaled to the White House that they would be willing to consider Garland’s nomination after the November elections if a Democrat is elected President. Sen. Orrin Hatch (R-UT) is one who mentioned that possibility. The reasoning is that Garland, while not what Republicans and conservatives want on the Court as Scalia’s successor, he would be more palatable than a nomination made by a President Sanders or a President Hillary Clinton. Also, there is the possibility that the GOP could lose its majority in the U.S. Senate, making a more liberal nominee from a Democratic president easier to confirm.

The remaining question is whether Garland would be approved by the Senate even if given a hearing. There appears to be no question of Garland’s judicial qualifications. He has a reputation for collegiality and a passionate belief that all opinions and viewpoints should be heard in judicial arguments. In decades past, this would have all but assured him of confirmation. However, the Senate departed from this history in 1987 when Ronald Reagan nominated Robert Bork to the Supreme Court. Bork had served as Solicitor General under Richard Nixon and as a judge on the U.S. Court of Appeals for the District of Columbia. Democratic opposition to his nomination led to a months-long passionate partisan battle and ultimate 58-42 defeat in a divided Senate. The verb “to Bork,” or “borking,” was coined not long thereafter and used, for example, by opponents to Clarence Thomas’s nomination to describe the tactics they would employ to fight Thomas and his supporters.

With so much in politics and government being volatile and unpredictable in 2016, it’s no surprise that a Supreme Court nomination would follow the pattern. Will Merrick Garland get a hearing? If so, with today’s announcements as a guide, he will likely be “borked” based on representations and misrepresentations of his judicial philosophy and character for partisan political advantage. Lobbying groups and media firms on both sides of politics will make a lot of money, but the public will be none the wiser and government won’t function any better.—Michael Wyland

Share
Tweet
Share
Email
Print
ABOUT THE AUTHOR
Michael Wyland

Michael L. Wyland currently serves as an editorial advisory board member and consulting editor to The Nonprofit Quarterly, with more than 400 articles published since 2012. A partner in the consulting firm of Sumption & Wyland, he has more than thirty years of experience in corporate and government public policy, management, and administration.

More about: Supreme CourtNonprofit NewsPolicy

Become a member

Support independent journalism and knowledge creation for civil society. Become a member of Nonprofit Quarterly.

Members receive unlimited access to our archived and upcoming digital content. NPQ is the leading journal in the nonprofit sector written by social change experts. Gain access to our exclusive library of online courses led by thought leaders and educators providing contextualized information to help nonprofit practitioners make sense of changing conditions and improve infra-structure in their organizations.

Join Today
logo logo logo logo logo
See comments

NPQ_Spring_2022

You might also like
Edgar Cahn’s Second Act: Time Banking and the Return of Mutual Aid
Steve Dubb
We Owe You Nothing: The Movement to Cancel Student Debt Gains Ground
Rithika Ramamurthy
Charitable Tax Reform: Why Half Measures Won’t Curb Plutocracy
Alan Davis
Green New Deal or Stale Old Tax-Break Scam? Getting Electric Vehicle Incentives Right
Greg LeRoy
Goodbye “Race Neutrality”—The Case for Race-Conscious Economic Policy
Dedrick Asante-Muhammad
Graduate Student Workers Are in the Frontline of the Growing Labor Movement
Rithika Ramamurthy

Upcoming Webinars

Group Created with Sketch.
June 9th, 2 pm ET

Remaking the Economy

Wage Justice, Now!

Register
You might also like
Edgar Cahn’s Second Act: Time Banking and the Return of...
Steve Dubb
We Owe You Nothing: The Movement to Cancel Student Debt...
Rithika Ramamurthy
Charitable Tax Reform: Why Half Measures Won’t Curb...
Alan Davis
WOMEN OF COLOR IN POWER
Women of Color in Power

Listen wherever you get your podcasts.

Subscribe
Rep. Ayanna Pressley and Authentic Leadership
Reclaiming Interrupted Lineages

Like what you see?

Subscribe to the NPQ newsletter to have our top stories delivered directly to your inbox.

By signing up, you agree to our privacy policy and terms of use, and to receive messages from NPQ and our partners.

Independent & in your mailbox.

Subscribe today and get a full year of NPQ for just $59.

subscribe
  • About
  • Contact
  • Submissions
  • Advertisers
  • Newsletters
  • Copyright

Subscribe to View Webinars

We are using cookies to give you the best experience on our website.

 

Non Profit News | Nonprofit Quarterly
Powered by  GDPR Cookie Compliance
Privacy Overview

This website uses cookies so that we can provide you with the best user experience possible. Cookie information is stored in your browser and performs functions such as recognising you when you return to our website and helping our team to understand which sections of the website you find most interesting and useful.

Strictly Necessary Cookies

Strictly Necessary Cookie should be enabled at all times so that we can save your preferences for cookie settings.

If you disable this cookie, we will not be able to save your preferences. This means that every time you visit this website you will need to enable or disable cookies again.