EDITORIAL: Voters could decide next U.S. Supreme Court justice

Georgia’s senators, along with other Republican senators, have come under criticism for their steadfastness in opposing the Senate taking up any nomination submitted by President Barack Obama to fill the U.S. Supreme Court seat that became vacant with the unexpected death of Justice Antonin Scalia.

But like everything else in politics, a rock solid position often is neither.

There’s a very real possibility that Chief Judge Merrick Garland, currently serving on the District of Columbia Circuit Court of Appeals, will be confirmed for that vacancy. It appears that voters in November will be voting for a Supreme Court justice along with a president.

The scenario goes like this: If the Republican nominee wins the White House, GOP senators refuse to take any action until the president assumes the office in January. If the presumptive Democratic Party nominee wins — former senator, secretary of state and first lady Hillary Clinton is a near certainty here, especially given the party’s super-delegate system — Republican senators could decide that they prefer Garland to what they would expect to be a more liberal nominee from Clinton.

And that is the heart of the court matter — the heart of the Supreme Court. With Scalia’s death, it is seen, in most cases, as equally divided — four justices who are conservative, four who are liberal — though in varying degrees. A Garland confirmation would move it to the left, but not as far as it could be.

The problem is Senate Republicans have painted themselves into a corner in the George H.W. Bush “read my lips” tradition. They have to find a way to maintain their position — Senate Majority Leader Mitch McConnell says he won’t meet with Garland — while also gaining some flexibility — Senate Judiciary Committee Chair Charles Grassley, R-Iowa, has indicated he’d be willing to meet with the jurist.

Both Sen. Johnny Isakson and Sen. David Perdue, who sits on the Judiciary Committee that sent McConnell a letter stating the panel would not take up a nomination until after the election, have reiterated their belief that the vacancy should not be acted on until after the election. In fact, both Georgia Republicans have cited comments by Vice President Joe Biden, when the Democrat chaired the Senate Judiciary Committee. Biden said at the time that the Senate would be in “deep trouble as an institution” if it took action on a Supreme Court nomination during the election campaign for the White House.

The inference might be that GOP senators — and Democratic senators before them — believe that a lame-duck president’s nomination is unfair. That’s not the case. Were it a Republican president leaving office in January rather than a Democrat, GOP senators would be pushing for consideration and Democratic senators would be arguing to wait until the election is over.

To his credit, President Obama made a good nomination undre the circumstances. Garland is seen as a moderate, one who, in a less hostile political climate and earlier in Obama’s term, would be acceptable to many and probably most Republican senators. GOP senators are giving themselves wiggle room in that they are not specifically knocking Garland. Perdue, for instance, made it clear Thursday that he was taking aim at the process, not at Garland, saying that “any previous confirmation, record as a judge, or professional qualifications are not the issue here, for any nominee. What’s at stake here is the integrity of the process, not the person. It’s the principle, not the individual.”

What we expect to happen, though this election year already has had more than its share of anomalies, is this. If the GOP wins the White House, the next president will name the high court justice. If Democrats win, Garland will be confirmed, maybe in record time.

— The Albany Herald Editorial Board