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to the U.S. Court of Appeals for the District of Columbia without his nomination being confirmed, rejected, or withdrawn.Yes, if you go back 150 years there was another SCOTUS nominee, Henry Stanbery, who was denied any official Senate action and yet did not withdraw.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 [impeachment] trial that nearly removed Johnson from office.
A few weeks ago, Politico said Senate Democrats were prepared to give Donald Trump's cabinet nominees "the Garland treatment," referring to Supreme Court nominee Merrick Garland. The report, however, was badly flawed: Garland received no hearing, no confirmation vote, and no meaningful consideration -- an official response that none of Trump's nominees will receive.Indeed, New York's Ed Kilgore noted yesterday that Garland's nomination to the high court is officially dead, and the federal appeals court judge is going back to work.
As Kilgore explained sardonically, Johnson tried to undo the consequences of the American Civil War, while President Obama brought health security to millions: "Standards for making a president a pariah whose nominees can be systematically obstructed have clearly deteriorated."I've long seen the Garland story as a major national scandal that has never been treated as such. About a month ago, Sen. Jeff Merkley (D-Ore.) told MSNBC's Chris Hayes that Senate Republicans' treatment of a qualified, moderate jurist was effectively a political crime. A Supreme Court seat, the Oregon senator argued, was "stolen from the Obama administration and the construct of our Constitution. And it's being delivered to an administration that has no right to fill it."Merkley added, "There's no legitimacy to a Supreme Court justice in a seat that's been stolen from one administration and handed to another. We need to do everything we possibly can to block it ... it won't be DOA unless the American people understand that this is the theft of the court."The senator's comments were largely overlooked, but I still think he raised a legitimate point.Circling back to our previous coverage, Senate Majority Leader Mitch McConnell (R-Ky.) gambled that (a) he could get away with this partisan blockade; and (b) his gambit would work.For months, it started to look like the boneheaded political strategy of the decade. When McConnell and Senate Republicans launched the blockade, they assumed a Republican would win the White House – an assumption that started to appear ridiculous when GOP voters nominated a clownish reality-show personality. McConnell, to borrow Merkley’s analogy, was stealing a Supreme Court seat from one president, only to hand it to another president he hated even more.
But now we know better. McConnell is getting the last laugh. If the GOP's mistreatment of Garland is effectively a political crime, the criminals have gotten away with it.