Washington, DC once ran with a degree of “comity”, which is to say, “friendly social atmosphere.” Both parties fundamentally saw themselves as in a cooperative enterprise (“We are all working to lead the country forward, and though we have different views on how to do that, we will acknowledge that we agree on that much and will find ways to work together per the Constitution to make it happen” ). After 9/11 that comity broke down. Judge Merrick Garland* was ultimately the greatest victim of that breakdown, and it cost him a seat on the Supreme Court.
This cyclic degeneration of the comity of Washington got out of control over the last two decades. How did it happen? As I recall the events:
- Round 1 (2001) – Miguel Estrada,** a conservative lawyer, was nominated to the DC Circuit Court of Appeals by Bush II. He was eminently qualified (per an honest Lefty law professor friend of mine), but Democrats blocked him on the grounds of his being appointed by Bush.
- Round 2: The turnabout was Republicans blocking most Obama judicial nominees via filibuster.
- Round 3: Harry Reid lost his temper at McConnell and at his behest the Dems changed the rules so that judicial nominees below the Supreme Court level couldn’t be filibustered (the “Reid Rules”). The first beneficiaries were three eminently qualified judges for the DC Circuit.
- Round 4: Once the Republicans had the Senate again, McConnell didn’t need the filibuster. He could just keep nominations bottled up in committee. It came to a boil with the death of Scalia and the nomination of Garland. McConnell said it was too close to the election to confirm a new Supreme Court justice, so Garland never even got a hearing before the Judiciary Committee.
- Round 5: McConnell changes the Reid rules (which was “no filibusters below the Supreme Court level, but filibusters still permitted for the Supreme Court”). To get Gorsuch and Kavanaugh confirmed, McConnell abolished the filibuster for Supreme Court nominees.
- Round 6: The death of RBG. McConnell rammed Amy Barrett through, notwithstanding that it was much closer to Election Day than Garland.
Sorting this out to say who is really at fault is like sorting out two squabbling children who want to tell you about who stole the first French fry. It does seem to me that the Democrats broke “comity” first by rejecting Estrada and then made an enormous change with the Reid Rule, but that the Republicans have not been shy about retaliating in kind and beyond in kind.
But this is not the kind of thing to be resolved by figuring out which child has the better case about who stole the first French fry. What the moment needs instead is a national Orestia. And in Judge Garland, I had been praying our country had the man who could bring it about. I had always assumed that the PR on Judge Garland had been accurate. He was a moderate, and he got screwed on his SCOTUS nomination: an Orestia takes a party who has a legitimate grievance but is willing to be the one to move past it first. Judge Garland’s history would have made him the perfect American to bring about that Orestia.
Yet lately our esteemed Attorney General Merrick Garland is acting in a disappointing fashion. The DOJ would appear to be seeking to dissuade states from doing more audits like Arizona’s. Recent actions rare positively goonish: threatening states if they do independent audits? Treating the petition of government for redress of grievance (by rallying in support of audits, for example) might be prosecuted as voter intimidation? That’s nuts. And now I wonder if the description of him as a “moderate” from 5 years ago was well-earned.
I had hoped that the Biden administration would have at least one adult that might counsel a path other than anti-Constitution thuggery, if for no other reason that there would finally be “someone we can talk to” (as my old Lubavitcher friends would say) and crisis could be averted. I was hopeful it would be he. Recent events are shaking me from that optimism.
Judge Garland (now General Garland), the Constitution applies to us, too. And mass election fraud IS voter suppression.
Patrick M. Byrne
*_ My feelings are shaped by the fact that Judge Garland is well-known to a friend, an esteemed professor at Georgetown law, who has spoken to me privately and warmly of Garland for years.
**__My honest but Lefty law professor friend adds, “Some Republicans would say that Round 1 was the 1988 Bork nomination. I don’t agree. Bork presented himself in the hearings as a professor who treats law as intellectual puzzles for him to sink his very sharp teeth into, who couldn’t care less about human beings. I recall one journalist who said that he looked like the kind of judge who would throw the book at the whole country. He sunk himself. It was an own-goal.”