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Should Judge Merrick Garland Have Received a Hearing and Why Didn’t he?

I did empathize a bit with the Democrats in the Gorsuch nomination when they lamented the fact that the former President’s choice for the Supreme Court, Judge Merrick Garland, did not even get a hearing on his confirmation.

Now the record is clear:  I called for a hearing.  Here it is!

BUT, I would have hearings.  Ask tough questions.  Ask about great Scalia cases and dissents.  Make it clear to the American people how wonderful the late justice was.  And Judge Garland will have to either try to agree with Scalia or say no I am not a strict constructionist or a textual judicial conservative.  Now senators need to be ready to confront Judge Garland on inconsistencies between Scalia’s judicial philosophy and his.

THEN and only THEN reject the judge because he will almost for sure show he is no Scalia.  And then the senators ought to propose more appropriate names to the President.  Ted Cruz would be a good start.

I do not expect WashPo or NYT to agree but it looks fair and it is fair:  Give the judge a chance.  But I am certain Judge Garland is no Scalia.  He will fail the test.  Then reject him.  But the “no hearings, no vote” strategy is a loser with people.  the voters want the Senate to be fair.

Judge Garland (who I just nominated for prosecutor of the Syrian war crimes trials that should be done rather than cruise missile strikes) would have done fine but he was no Scalia.  And it could have been easily shown.

So why did the GOP controlled Senate say no to even a hearing?  I know why.  But it is no glory to the Republicans.  For we would have Justice Garland by now.


The Republicans tend to “play by the rules” and one rule they would have done is to play along with the system – well the President did nominate Judge Garland and he is clearly qualified to he a Justice on the Supreme Court and blah, blah, blah.  All the Dems needed would have been four defections.  Then Biden votes yea and bam! – we have Justice Garland.

Two for sure:  Collins of Maine and Kirk of Illinois

A maybe or two:  Murkowski of Alaska and Ayotte of New Hampshire.

This is why the Dems are so upset about the failure to hold a hearing.

That is why the tea party and conservative groups were right to force the issue (of course I would have called for the hearing until the election but on the terms stated above:  To paraphrase another senator:  Judge Garland is no Scalia.  It would have been easy to show the people.) and say NO HEARING.

Now it was a crap shoot – President Hillary Clinton (I can hardly write the words – thank the Lord it never came to pass!) would have nominated a more liberal choice and Garland was kicked to the curb.

Now we know.  Lest there be no doubt.  The Dems will use the nuclear option (it is and should be called the “constitutional” option instead) when they come back to power.  We will need a real filibuster then to keep a ultra liberal off the Court.

Virginia voters remember this:  BOTH Senators Warner and Kaine voted NO and would have “filibustered” Justice Gorsuch.  We need a new senator in 2018.  Senator Dave Brat anyone?


About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

6 Responses to “Should Judge Merrick Garland Have Received a Hearing and Why Didn’t he?”

  1. Janine Woods

    What’s the point of this article? You can’t change history.

    Also, no way should Dave Brat run for Senate. More time, effort, and MONEY should be spent to keep Brat in the HOUSE. He said that he would serve 12 year in the House, and that’s what he should do.

    • Sandy Sanders

      Thanks Janine for coming by. This is an analysis where I went deeper than I did last Spring when I wrote the first article.

      I would rather keep Rep. Brat in the House but I do not want another establishment GOP v. Sen. Kaine.


  2. Trump Watcher says:

    For any statewide Republican to have any chance at winning an election, Trump has to do a great job. Sandy, has Trump done a great job thus far?

  3. Danville Tea Party says:

    While not a huge fan of Senator Mitch McConnell because he married a CHI COMM, I will give him this:
    By blocking Garland’s nomination it gave the conservatives the motivation to go vote. BLACK ROBES MATTER…. and Trump was elected and the Conservatives got their Supreme Court Justice in Neil Gorsuch.

    One Justice down and 4 more to go in a Trump Administration: Ginsburg, Kennedy, Suitor, and Thomas.


  1. […] back to politics: I thought Judge Merrick Garland should have gotten a hearing (noted here at this blog) but not appointed to the Court. But if the precedent was established, it is wrong to […]

  2. […] I have decided to change my mind about the matter. Mostly! I still think the position of the GOP this time would be stronger if they had given Judge Garland a hearing and […]

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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