U.S. Sen. Pat Toomey recently wrote an op-ed to explain why he opposes Chief Judge Merrick Garland's U.S. Supreme Court nomination. Any senator has the right to oppose judicial nominations, but it is flatly irresponsible for Toomey to deny Garland a hearing or vote until the next president takes office in January 2017, or later.
Toomey supports this long wait for the political goal of maintaining a conservative majority on the court, and that is unprecedented. It is bad enough that an eight-justice court cannot resolve the country's hardest legal problems for a year or longer. However, the long-term impact of Toomey's position for future nominees could be much more destructive. No Supreme Court nominee in history has been rejected - much less denied a hearing - simply because a Senate majority used its muscle to demand nominees that fit its ideological preference.
Toomey's op-ed described Garland as "a pleasant man with impressive legal training and experience."
Garland is the most qualified Supreme Court nominee since Benjamin Cardozo in 1932, with more experience on the federal bench - 19 years on the D.C. Circuit - than any nominee in history. Before becoming a judge, Garland also helped prosecute the Unabomber and Oklahoma City bombing, the most important terrorism cases from that era.
Only days before Garland's nomination, Utah Republican Sen. Orrin Hatch called him a "moderate" judge and "a fine man." And in 2010, Hatch went further, saying that there was "no question" that he should receive bipartisan confirmation if nominated to the Supreme Court: "I have no doubts that Garland would get a lot of votes. And I will do my best to help him get them."
Garland has had this kind of bipartisan support for years, and there is only one reason: His judicial record has consistently followed decisions by the Supreme Court and, where appropriate, by Congress and the executive branch. In simplest terms, Garland has made his career out of following the law, instead of making it up. President Obama could have chosen dozens of nominees who would be more politically liberal than Garland, but no one has higher standards of personal integrity and apolitical decisions.
Toomey's objection to Garland is his desire to maintain a conservative "balance of the Supreme Court." But almost every appointment alters the Supreme Court's "balance." Justice Samuel Alito's nomination moved the court far to the right in 2006, and so did Justice Clarence Thomas in 1991. Both of those conservative nominees received hearings and votes. Garland - with his centrist record, character, and reputation - deserves nothing less.
Retired Justice Sandra Day O'Connor has criticized Senate obstructionism, saying "we need somebody in there to do the job and just get on with it." She explained that "you just have to pick the best person you can under these circumstances." This is exactly what the gold-credentialed, mainstream nomination of Garland represents. Toomey's alternative could turn any future Supreme Court nomination into a bare-knuckled power struggle unlike anything that has happened before.
The GOP and presumptive presidential nominee Donald Trump have taken a hardline stance against giving Garland a hearing or a vote, but Toomey's behavior is very disappointing for his Pennsylvanian constituents, and cripples the Supreme Court from doing its job. Toomey suggests that Garland's decisions have not always produced the political results he would prefer, but that is not how our courts or our senators are supposed to work.
Garland has an extraordinary record of public service and accomplishment. A full hearing is the first step toward letting the public see whether he ultimately deserves Senate confirmation.
Craig Green clerked for Judge Merrick Garland from 2000 to 2001. He is currently a law professor at Temple University.