Arguments against Garland nomination all fail

In the space of a morning news conference in the Rose Garden of the White House, the dilemma faced by the Shutdown Party went from abstract and theoretical to acute and imminent.

President Barack Obama nominated Chief Judge Merrick Garland of the U.S. Court of Appeals for the Washington D.C. Circuit to replace the late Justice Antonin Scalia on the U.S. Supreme Court. And despite some desperate efforts to suggest that Garland is a wild-eyed liberal, he appears to be eminently qualified.

And that’s a problem for the Shutdown Party, which has a nasty habit of grinding government to a halt when it doesn’t get its way.

But there was Senate Majority Leader Mitch McConnell — who once declared his party’s No. 1 priority would be to deny Obama a second term — continuing his crusade by trying to deny the president the ability to appoint a justice to the high court.

McConnell cited comments from Democrats that appear to suggest lame-duck presidents should not make appointments in the closing months of their term. Of course, the Democrats in question were speaking of theoretical vacancies. The Shutdown Party is now setting about performing an actual abdication of its constitutional responsibility.

And if it must be said, let it be said here: Whoever says presidents cannot or should not make appointments to fill vacant judicial offices no matter when they arise is simply wrong. Whether it was a Democratic speaking in fear of a potential Republican appointment, or a Republican refusing to take up an actual Democratic nomination, simply ignoring a nomination is a shameful abdication of duty.

Meanwhile, here in Nevada, Sen. Dean Heller agreed with McConnell. “I’ve been clear that I believe the American people deserve the opportunity to have their voice heard in selecting the next Supreme Court justice,” he said in a written statement. “And when the people make that choice, I’m ready to proceed.”

Memo to Heller: The American people spoke back in 2012, when they re-elected Obama. By ignoring Obama’s nomination, you’re ignoring their voice.

Rep. Joe Heck, who initially allowed the president has the power to nominate and the Senate to advise and consent, and “each entity should exercise its prerogative,” abandoned that construction to conclude that “With the president and the Senate so clearly divided, instead of fighting over an issue on which they cannot agree, their time would be better spent finding common ground on issues like our economy and national security.”

Memo to Heck: Senators are elected to solve the tough problems, especially when people are clearly divided. You can’t simply ignore problems and move on to the next thing.

Oh, and Attorney General Adam Laxalt — who is not running for Senate, but whose grandfather once represented Nevada in that body — felt the need to announce his position, too. “It is my hope that Nevadans will have a hand in such a critical appointment, and that the Senate will exercise its constitutional power and not vote on any nominee until after the next president — Democrat or Republican — is sworn into office.”

Memo to Laxalt: Article 2, Section 2 of the U.S. Constitution says the current president shall have power to make appointments, not the Theoretical Future Presidents. That means it doesn’t matter who is elected in November; until noon on Jan. 20, 2017, Barack Obama is president and retains the full powers of office.

The Constitution expects political rivals to govern and compromise. By all accounts, Garland is an excellent compromise candidate (seven sitting members of the Shutdown Party even voted to confirm him to the appellate bench in 1997!). But instead of evaluating that compromise, the Shutdown Party instead retreats to its all-too-familiar signature move.

Steve Sebelius is a Review-Journal political columnist and co-host of the show “PoliticsNOW,” airing at 5:30 p.m. Sundays on 8NewsNow. Read his blog at, follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or

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