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I understand Republicans’ opposition to holding a hearing and confirming President Obama’s nominee to replace conservative icon Justice Antonin Scalia on the Supreme Court.
In particular, I understand Sen. Mitch McConnell’s resentment of Sen. Harry Reid’s hypocritical sanctimoniousness. The atmosphere in Washington, D.C., is poisoned and it was not poisoned by Republicans alone.
Democrats played power politics when they could, shutting out Republicans and restructuring health insurance on a party-line vote. Using executive orders to circumvent immigration law. Changing the Senate’s rules to limit the minority party’s rights. Circumventing the Senate’s role in foreign policy by making an agreement, not a treaty, with Iran.
And Democrats have behaved badly toward Republican nominees when they could.
In 1987, they attacked Robert Bork, President Ronald Reagan’s nominee to replace moderate conservative Supreme Court Justice Lewis Powell. They denounced Bork as ignorant and prejudiced, and a supporter of back-alley abortions, segregated lunch counters, police abuse, and creationism.
In 1969, Democrats attacked Clement Haynsworth, President Richard Nixon’s nominee to replace liberal Justice Abe Fortas, as being racist, corrupt and anti-labor. More recently, they attacked President George W. Bush’s nominees John Roberts and Samuel Alito as extremist, racist, sexist, suck-ups and liars.
Worst of all was the bitter and ugly confirmation of Justice Clarence Thomas to replace liberal icon Justice Thurgood Marshall in 1991.
Republicans have not been above attacking Democrats, either. In 1968, they accused Fortas of accepting inappropriate speaking fees and retainers, filibustered President Lyndon Johnson’s attempt to elevate him to chief justice, and ultimately forced his resignation. More recently, they attacked President Bill Clinton’s nominations of Zoe Baird and Kimba Wood to be attorney general on the basis that they had employed illegal aliens as nannies, and Lani Guinier to be assistant attorney general for civil rights because of her support for radical forms of affirmative action.
It’s like a blood feud. No appeal to higher principle is availing. Each party feels aggrieved and determined to extract revenge for the most recent offense by the other. No one can remember the original cause. The fact that this type of vendetta can occur in a modern, civilized society like ours is testament to the limits of the rule of law. It doesn’t work unless animated by a spirit of goodwill.
Neither the structure of our government nor recent elections alone give either party a clear claim of right. The Constitution creates checks and balances. It gives both the president and the Senate a role in the process of filling seats on the court. The president has the power to nominate. The Senate has the power to advise and consent. While the president won re-election in 2012, Republicans won control of the Senate in 2014.
In order to stop the cycle of recrimination, someone has to take the first step and rise above. It may be that Obama nominated Merrick Garland to make Republicans look bad for opposing him. It would be better to think otherwise: that the president nominated an extremely qualified and eminently reasonable person because it was the right thing to do.
My wife and I were colleagues and friends of Garland’s when he left private practice as a partner at a large, prestigious D.C. law firm in order to go into government service as a line assistant in the U.S. attorney’s office, where he started out by trying drug cases. Later, he became deputy assistant attorney general in charge of the criminal division of the Department of Justice. He has been an appellate judge on the District of Columbia Circuit since 1995.
Garland is smart and well-educated. He has extensive experience in private practice, government service, and on the bench. He is thoughtful and fair-minded.
The country couldn’t do much better. Republicans could do a lot worse. Republicans in the Senate should hold a hearing, confirm Garland, and take a step toward restoring some goodwill to our system.
Halsey Frank is a Portland resident, attorney and former chairman of the Republican City Committee.