One of the tragedies (and travesties) of this political era is the refusal of a Republican-dominated U.S. Senate to give a hearing to President Obama’s nominee for the Supreme Court, Merrick B. Garland, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit.
Garland was considered a “consensus” nominee, a highly respected and qualified candidate, Chief Judge of the next most prestigious appellate court in our country after the Supreme Court.
The Senate’s refusal to give Judge Garland a hearing was highly politicized and partisan, and now provides President Trump an opportunity to choose one of two options:
- He can choose someone from the partisan list provided by the Federalist Society/Heritage Foundation, which will certainly lead to further dismay, division and systemic constitutional dysfunction, OR
- He can choose the best candidate, a consensus candidate who will enhance, rather than undermine, the independence of the Supreme Court and who will help mitigate the widening of the partisan schism tearing at America and the checks and balances of our constitutional government.
President Trump should choose the latter option and nominate Judge Garland.
What a brilliant stroke this would be. The shabby, partisan treatment of Judge Garland is and will continue to be a festering sore in the history of the 2016 election and the Trump presidency. President Trump now has an opportunity to promote some healing.
I am reminded of an Idaho story.
During the Hoover administration, our own Idaho Senator William Borah was summoned to the White House to meet with the President. It was an election year (as it was when Judge Garland was nominated). Ninety-
one-year-old Justice Oliver Wendell Holmes had bowed to age and resigned from the Supreme Court. President Hoover, a Republican, had a list of potential nominees. On the list was Benjamin Cardozo, a New York Democrat and a Jew.
Cardozo was considered one of the most brilliant jurists of the day. Hoover was sensitive to Western conservative reaction if he nominated Cardozo, because the Court already had one Eastern Jewish Democrat–Justice Louis Brandeis.
Borah was then the most senior member of the Senate (the “Dean of the Senate”). Because of his influence in the Senate and his Western leanings, Hoover called him to the White House to discuss his list of candidates. The Westerners were at the top of the list. Cardozo was at the bottom.
Hoover handed the list to Borah. Borah glanced at it and declared, “Your list is all right, but you handed it to me upside down.”
Hoover protested that geography and religion had to be taken into account. Borah famously said, “Cardozo belongs as much to Idaho as to New York” and added sternly, “anyone who raises the question of race [sic] is unfit to advise you concerning so important a matter.”
Borah returned to the Senate and led, immediately and proactively, approval of Cardozo’s nomination.
In summary, Idaho’s Borah supported the best candidate for an independent court, not one responsive to the ambient pressure of partisan demands.
Our current Idaho Senators abdicated their responsibility in the appointment of Judge Garland in 2016, although Garland was a “moderate” pick and may be the Cardozo of our day.
I would challenge them to remember Senator Borah’s example and show leadership in the nomination and approval of the best candidate to preserve the independence of the Supreme Court and to help avoid worsening of our partisan divide.
I challenge them to promote and support the nomination of Judge Garland.
 Henry Julian Abraham, Justices, Presidents and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II 160-61 (5th ed. 2008).