Two of the rumored finalists for President Obama’s Supreme Court nomination were scheduled to hear oral arguments together in a federal appeals court this morning.
As it turns out, they’re having very different days.
Yesterday, Obama announced that Merrick Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, was his pick for the high court.
Garland is now spending the day meeting with senators on Capitol Hill as the White House launches a broad effort to break down Republican opposition. Garland is facing staunch resistance from some Republican leaders, who are holding firm in their refusal to hold confirmation hearings.
Some of Democrats’ top Senate targets this November — including Sens. Mark Kirk of Illinois and Kelly Ayotte of New Hampshire — have said they would be open to meeting with Garland (E&E Daily, March 17).
As he became the center of the already contentious nomination battle, Garland dropped off the judicial panels scheduled to hear six cases before the D.C. Circuit today and tomorrow.
For Garland’s colleague Sri Srinivasan — reportedly the other finalist for the nomination — it was business as usual today at the D.C. Circuit.
Srinivasan heard arguments in two cases this morning, one involving access to congressional records and a second complicated Federal Energy Regulatory Commission case involving a methodology for calculating oil payments.
Srinivasan dove into the wonky, complex case questioning whether FERC had acted appropriately, posing questions about refiners’ investments and about whether FERC had adequately responded to the Alaskan refiner challenging the regulatory agency.
To Srinivasan’s right was an empty chair. Judge David Tatel replaced Garland on the panel. He will get up to speed to the audio of today’s arguments.
The White House hasn’t publicly said which candidates were under consideration for the job, although reports indicated that Srinivasan and Garland were among the leading contenders until the president made his final choice.
Asked yesterday whether Garland was Obama’s first choice, White House spokesman Josh Earnest said, "Absolutely. Absolutely."
At the White House this afternoon, Obama is scheduled to hold a conference call to thank stakeholders for supporting Garland’s nomination.
Although top Senate Republicans aren’t budging, some members of the party have suggested they’d be open to considering the nomination in a lame-duck session — particularly if a Democrat wins the White House in November (E&ENews PM, March 16).
Earnest yesterday rejected speculation that the administration might withdraw Garland’s nomination after the November election to avoid a lame-duck confirmation.
If a Democrat wins the White House in November, some have suggested the next president could advance a nominee who’s further to the left than Garland.
Earnest told reporters: "The president has put forward the individual that he believes is the best person in America to fill the vacancy on the Supreme Court. And the president is going to stand by that nominee."
Still, Earnest said, "There is absolutely no good reason to wait until the lame duck for the Senate to fulfill their duty to the Constitution and to the American people."
Garland — now thrust into the center of a bitter political brawl — is no stranger to partisan spats. The former prosecutor was first nominated to the D.C. Circuit by President Clinton in 1995 but didn’t win Senate confirmation until 1997.
During a battle on the Senate floor over Garland’s delayed D.C. Circuit nomination in 1997, Sen. Orrin Hatch (R-Utah) said, "I think the finest nominee that I have seen from this administration is Merrick Garland, and I think he deserved better."
Still, Hatch said then that he understood his colleagues’ opposition to advancing Clinton’s judicial nominees. "Republicans are fed up with these judges who disregard the role of judging once they get to the courts," he said.