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Commentary: With Merrick Garland obstruction, U.S. Senate sets sad milestone

By Frederick Lawrence Judge Merrick Garland has set a record he never sought and one of which no one, certainly not the U.S. Senate, should be proud. July 19 marks 125 days since President Obama nominated Garland to the Supreme Court to replace the late Justice Antonin Scalia. The nomination passes the record for delay that the Senate set a century ago with the nomination of Louis D. Brandeis to the court.

By Frederick Lawrence

Judge Merrick Garland has set a record he never sought and one of which no one, certainly not the U.S. Senate, should be proud. July 19 marks 125 days since President Obama nominated Garland to the Supreme Court to replace the late Justice Antonin Scalia. The nomination passes the record for delay that the Senate set a century ago with the nomination of Louis D. Brandeis to the court.

One hundred years ago, with a world in turmoil as a great war raged in Europe, a cultural and political battle unfolded in the U.S. Senate. In January 1916, an election year, President Woodrow Wilson nominated Brandeis for the Supreme Court vacancy created by the death of Justice Joseph Lamar. The Brandeis nomination, which portended to put the first Jewish justice on the court, triggered the most intense nomination battle of America's first century and a half. It took the Senate 125 days between the nomination and the vote for the nomination. Never before or since had the Senate taken so long to give a Supreme Court nominee an up-or-down vote. That is, never until today.

There were many ingredients to the opposition to the Brandeis nomination. Brandeis had distinguished himself as a leading figure in the Progressive movement, a trust-buster challenging the tycoons of his day. But the most toxic ingredient in the effort to derail the nomination was anti-Semitism.

Attacks on Brandeis' Jewish heritage were rarely made expressly but were rather thinly veiled as attacks on his "character." Harvard President A. Lawrence Lowell, who was known for his advocacy of restrictive immigration policies and for instituting a quota capping the number of Jewish students at Harvard, called Brandeis "unscrupulous." Francis Peabody, a prominent Boston attorney who testified at the confirmation hearing, was more direct in his attack on Brandeis: "He had no power of feeling or understanding the position of an opponent, and none of that spirit of playing the game with courtesy and good-nature which is part of the standard of the Anglo-Saxon."

Six former presidents of the American Bar Association opposed the nomination, and former President (and future Supreme Court chief justice) William Howard Taft called it "an evil and a disgrace." The media opposition to Brandeis included strong objections from the Wall Street Journal and the New York Times, which called Brandeis a "radical." To its credit, the Times came around, observing at the time of his retirement that the battle over Brandeis' confirmation "seems almost incredible now" and celebrating Brandeis as "one of the great judges of our times."

Ultimately, after the unprecedented delay, the Senate did vote 47-22 to confirm Brandeis. He would go on to a remarkable 23 years of service on the court, distinguishing himself as one of the great legal minds of the 20th century and the namesake of the university where I was honored to serve as president.

But the stain of the effort to thwart his accession to the court still reverberates. In the years since, there have been other fights over nominations to the court. In each case, however, no matter how high the level of dissension, hearings were held and a confirmation vote was ultimately taken. Even the battle over the Brandeis nomination a century ago culminated in a vote on the floor of the Senate. Brandeis' judicial career was one of great distinction. The lasting shame was on those who delayed consideration of and opposed his appointment to the court.

Today marks a new low - the Senate refuses even to hold a hearing on Merrick Garland. I join lawyers and scholars from across the political and legal spectrum in observing that Garland is an exceptionally qualified nominee who, in addition to his 19 years of distinguished service on the U.S. Court of Appeals for the District of Columbia, oversaw the Oklahoma City bombing prosecution.

The Senate's obstruction will leave an eight-member court into the next term, and the challenges raised thereby are apparent: There were four 4-4 decisions this past term, including United States v. Texas, which leaves the constitutionality of the Deferred Action for Parents of Americans (DAPA) program, and the status of millions of American families, in legal limbo.

The constitutional responsibility of the Senate to provide advice and consent is clear. In a different but related context, Justice Brandeis made the point powerfully: "Our government ... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

The categorical obstruction of the Garland nomination has created challenges for the court. But in the years to come, the institution whose credibility is most at risk from this obstruction is the U.S. Senate itself.

Frederick Lawrence is a senior research scholar at Yale Law School and the secretary and CEO-elect of the Phi Beta Kappa Society. frederick.lawrence@yale.edu