BY JAMES M. KRAMON
If the only consequence of Senate Majority Leader Mitch McConnell’s 293-day delay in scheduling a consent hearing for Judge Merrick Garland’s nomination to the U.S. Supreme Court by President Barack Obama was that a conservative rather than a moderate Supreme Court justice would replace Justice Anthony Kennedy, it would have accomplished his purpose. Unfortunately, his action — or, rather, inaction — has greater implications. By disregarding a long-recognized procedural convention and imposing a delay well in excess of customary, Sen. McConnell opened the door to procedural gyrations in federal judicial appointments.
It is ironic that Sen. McConnell’s toying with established procedure is precisely what conservatives often accuse liberals of doing. A touchstone of conservatism, of importance to liberals as well, is that procedural paradigms shall not depend on whose ideological ox is being gored. At a time when Americans are starkly divided on major issues, traditionally conservative regard for unvarnished rules of the road is particularly important. Conservatives have always been loath to justify novel means to accomplish desired ends.
Sen. McConnell’s explanation for his delay, that filling the vacancy on the Supreme Court should await a new president, is transparently absurd. It is, of course, no justification for this delay — which lasted from Mr. Garland’s nomination on March 16, 2016, to its expiration, Jan. 3, 2017 — that the Constitution does not place a specific time limit for such consent hearings. There are dozens of requirements in the Constitution and other legal pronouncements that do not set forth specific time limitations for particular actions. There is a transcendent legal doctrine that when no time limit for particular action is established, that action shall be taken within a “reasonable” time. What is “reasonable” depends, of course, on the particular circumstances. No one could credibly contend that a delay of 293 days is “reasonable” to hold a consent hearing for a nominee to fill a Supreme Court vacancy. One hears a suggested time limit of 30 to 90 days, with 60 days seeming to be the center of gravity.
As a distinguished legal scholar recently explained, our written Constitution incorporates by necessity many facts and principles needed to actualize the Constitution’s written objectives. If this were not so, the majority leader of the Senate could theoretically decline to schedule consent hearings for nominees to fill cabinet vacancies or to respond to a presidential request for a declaration of war. These are, of course, reductio ad absurdum possibilities, but once the door is opened to procedural manipulations, it is not clear where they will end.
Some liberals are now contemplating meeting Majority Leader McConnell on the low road. That would be unfortunate. The tactic surely would be to apply to President Trump’s nominee, Judge Brett Kavanaugh, an unprecedented consent standard for a federal judicial nominee. There is no question, given his years of satisfactory service on a United States Court of Appeals and the absence of any derogatory information concerning him, that Judge Kavanaugh fully satisfies prevailing requirements for a Supreme Court nominee. United States Sen.s have routinely approved nominees of differing political ideologies on this basis. It was obviously contemplated that “advice and consent” would not be construed as ideological concurrence. It would be unwise for liberal Sen.s to yield to tit-for-tat motivation to deviate from this tradition.
Decades ago, I was in the United States Court of Appeals in Chicago when panel chairman Judge Thomas E. Fairchild, a Democrat, recessed oral arguments so that Sen. Charles Percy could welcome Judge (later justice) John Paul Stevens, a Republican, to the United States Court of Appeals. I recall today, decades later, the ebullience on Judge Fairchild’s face as Sen. Percy came to the bench and shook hands, first with Judge Fairchild and last with Judge Stevens. There was nothing in the gathering I witnessed that recognized political parties or ideological persuasions. It was simply a gathering of men who shared respect for one another and for the law and traditions that bound them together. I would very much like to see such a gathering again.
James M. Kramon is of counsel to Kramon & Graham P.A. He served as law clerk to Judge Thomas E. Fairchild in the 1970-71 term of court. His column was published in the Baltimore Sun.