Garland for Supreme Court

Obama to pick Merrick Garland for Supreme Court, sources say

The nomination sets up a fierce confirmation fight with Senate Republicans. 

By Edward-Isaac Dovere, Sarah Wheaton and Seung Min Kim

President Barack Obama plans to nominate Merrick Garland for the Supreme Court, according to two Democratic sources, the first step in what will be a ferocious battle with Senate Republicans over the future of the nation's highest court.

The president will formally make his announcement in a Rose Garden event at 11 a.m. Wednesday.

Garland, 63, currently serves as the top judge on the influential D.C. Circuit. He's widely admired by Democrats and Republicans alike, although he wasn't unanimously confirmed for his current post. Utah’s Sen. Orrin Hatch, a key Republican on the Judiciary Committee, has urged Obama to nominate him for earlier Supreme Court vacancies.

Garland was confirmed by the Senate 76-23 in 1997 and five still serving Republican senators voted against him: Jeff Sessions of Alabama, Richard Shelby of Alabama, Mike Enzi of Wyoming, as well as Majority Leader Mitch McConnell of Kentucky and Judiciary Committee Chairman Chuck Grassley of Iowa.

Still, Republicans have been clear that they will block any nominee, regardless of qualifications. They've vowed to wait for the “voice of the people” to be heard in November before even considering the next justice, for fear of confirming a nominee that could tilt the court leftward for years to come.

But Democrats also see a once-in-a-generation chance to reshape the bench in their favor. And beyond that, the White House and its allies say they are fighting to preserve the power of the president to nominate a justice with the advice and consent of the Senate in the face of unprecedented partisan obstruction by Senate Republicans, who have ruled out even a confirmation hearing, let alone a vote.

McConnell dug in his heels within hours of late justice Antonin Scalia's death last month, saying the American people should have a say in choosing the next justice through the presidential election process. Democrats have strongly objected, and said Republicans' refusal is further evidence that they have long questioned Obama's legitimacy as president.

In an email earlier in the day, Obama did not name his choice, but said he sought someone with "an independent mind, unimpeachable credentials, and an unquestionable mastery of law." The president discussed his pick during a Wednesday morning conference call with Senate Democratic leadership and Judiciary Committee members, and the name leaked out shortly afterward.

Donald Trump, the Republican frontrunner, backed up Senate Republicans on Wednesday morning, saying they shouldn't give Obama's pick a hearing.

“I don’t think so, no I think they should do what they’re doing,” Trump said on “Good Morning America” Wednesday.” “I think they should wait until the next president and let the next president pick.”

Obama alluded to the looming battle with the Senate in his email on Wednesday.

"I’m confident you’ll share my conviction that this American is not only eminently qualified to be a Supreme Court Justice, but deserves a fair hearing, and an up-or-down vote," Obama said. "In putting forward a nominee today, I am fulfilling my constitutional duty. I’m doing my job. I hope that our Senators will do their jobs, and move quickly to consider my nominee. That is what the Constitution dictates, and that’s what the American people expect and deserve from their leaders."

Obama laid out three principles that he said guided his choice.

First, that a justice "should possess an independent mind, unimpeachable credentials, and an unquestionable mastery of law."

Second, that he or she "should recognize the limits of the judiciary's role."

And third, that his choice have "a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook."

"It’s the kind of life experience earned outside the classroom and the courtroom," he elaborated, "experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly-changing times."

Republicans don’t plan to let Obama define his nominee’s qualifications for long. Sen. John Cornyn (R-Texas) predicted that the nominee would "resemble a pinata," and Republican National Committee chairman Reince Priebus announced Monday that he’s creating a task force to vet the candidate. That includes working with the opposition research group America Rising Squared, which is already building dossiers on the potential nominees.

To replace Scalia on the bench, Obama will need to convince at least 14 Republican senators to join Democrats to break an inevitable filibuster and at least five Republican senators to vote with Democrats for confirmation — but first somehow convince McConnell to back off from his absolutist position against even giving the nominee a hearing.

So far, there are few signs that the Republican stand against any action on an Obama nominee is likely to crack. All 11 GOP members of the Senate Judiciary Committee signed what amounts to a written pledge that no nominee will be granted a hearing until after a new president is sworn in next January.

The White House is hoping to create some movement by this summer, but many expect that this battle will go all the way through November, with Democrats threatening to turn it into a major political issue in all five states with vulnerable Senate Republican incumbents. They also hope to expand the 2016 battleground to more states with an argument about GOP obstruction, which they're aiming to tie to Donald Trump's rise as the likely Republican presidential nominee.

Democrats feel that in addition to their own base, support is high among independents for Obama going through the normal process of replacing a justice on the Supreme Court, as recent polls show. But Republicans are equally confident in their firm position, especially since filling Scalia's seat with an Obama nominee would change the ideological balance of the court for a generation. They’ve pointed to old arguments by Sen. Charles Schumer (D-N.Y.) and Vice President Joe Biden when he was in the Senate that the Senate should not necessarily confirm a justice in a presidential election year. Republicans have taken to saying they're just following the "Biden rule."

As the announcement plans were made public on Wednesday morning, the White House was already ramping up its campaign, creating the Twitter handle @SCOTUSnom.

But the fight was brewing well before that, with a special effort to put pressure on Grassley, the Judiciary Committee chairman who is known for valuing the traditions of the Senate. He’s up for re-election in November, and his refusal so far to hold hearings has emboldened a Democratic challenger, Patty Judge.

The progressive wing’s champion, Sen. Elizabeth Warren (D-Mass.), made a surprise appearance at a panel discussion on Tuesday hosted by the left-leaning legal group American Constitution Society about the importance of confirmation hearings, and she echoed Democrats’ key refrain: “The Senate should do its job.”