WASHINGTON — Judge Merrick Garland will soon put on his black judicial robe for the first time in months. The bad news for President Barack Obama’s nominee to the Supreme Court is that Garland’s going back to hearing cases at his old job, not the high court.
Garland now joins a small group of people nominated but not confirmed to the Supreme Court, and there’s no script for how to act as an unsuccessful nominee.
As the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, Garland stopped hearing cases after being nominated by Obama in March to fill the seat of Justice Antonin Scalia, who died in February. Garland’s chances of getting confirmed evaporated with Donald Trump’s election as president, and the judge is expected to return to the bench at the federal courthouse on Washington’s Constitution Avenue.
Lawrence Baum, a professor emeritus at Ohio State who has studied the court, said Garland probably knew his confirmation would be difficult. The same day Scalia was found dead at a Texas ranch, Senate Majority Leader Mitch McConnell, R-Ky., said the next president should select Scalia’s successor.
Before Garland, the last unsuccessful Supreme Court nomination was Harriet Miers, nominated by President George W. Bush to fill the seat of retiring Justice Sandra Day O’Connor in 2005.
Before Miers, the previous unsuccessful nominee to the court was, like Garland, a judge on the appeals court in the nation’s capital. Judge Robert H. Bork was nominated by President Ronald Reagan to fill the seat of retiring Justice Lewis Powell in 1987. When liberal groups mobilized against Bork and senators voted down his nomination, he resigned his judgeship.
“He would have preferred it turn out differently,” Robert H. Bork Jr. said of his father’s nomination to the seat ultimately filled by Justice Anthony Kennedy. “But did give him the ability, the entree, to attract audiences to hear his views about constitutional law.”
Officially, the White House is still backing Garland’s confirmation to the court. But confirmation is now unimaginable, said Erwin Chemerinsky, dean of the University of California-Irvine School of Law. Garland’s nomination will simply expire without action when Congress recesses, he said.
“It’s unprecedented. It’s unfair. It’s wrong, but there’s no way Senate Republicans are going to confirm Merrick Garland,” said Chemerinsky, a well-known liberal.
It is unclear when Garland will begin hearing cases again, but when he does, there will be some reminders of his nomination. The courtroom his court uses is filled with paintings of former circuit court judges. On one wall is Bork. On another, Supreme Court Justice Ruth Bader Ginsburg.