It became official when the Senate wrapped up its post-election “lame duck session” last week: Supreme Court nominee Merrick Garland is returning to the U.S. Court of Appeals for the District of Columbia without his nomination being confirmed, rejected, or withdrawn.
Yes, if you go back 150 years there was another SCOTUS nominee, Henry Stanbery, who was denied any official Senate action and yet did not withdraw. It’s not as though the Senate ignored him as its descendants ignored Garland, though: The upper chamber reduced the size of the Court to deny Stanbery a seat. There were extenuating circumstances: Stanbery was Andrew Johnson’s attorney general and Johnson’s defense lawyer during the Senate trial that nearly removed Johnson from office.
Garland did nothing in particular to arouse the ire of the Republican Senate, and his fate shows how routine it has become for the GOP to treat a Democratic president much like the Republican Senate of the 1860s treated Andrew Johnson. Johnson more or less tried to eliminate the consequences of the American Civil War. Barack Obama tried to enact universal health coverage and comprehensive immigration reform. Standards for making a president a pariah whose nominees can be systematically obstructed have clearly deteriorated.
We cannot expect those standards to improve anytime soon. Democrats hoped to make the engineer (if not the architect) of the Garland stonewalling, Senate Judiciary Committee chairman Chuck Grassley of Iowa, “pay a price” for the outrage. In January, as Donald Trump prepares his SCOTUS nomination for the vacancy Obama picked Garland to fill, the 83-year-old Grassley will be sworn in for his seventh term in the Senate, having been reelected by a 25-point margin.
Sometimes there’s just no justice in American politics.