President Barack Obama last week nominated to the Supreme Court a Jewish judge, Merrick Garland, who is currently the chief judge of the U.S. Court of Appeals for the District of Columbia. If confirmed, he would be the fourth Jew on the nine-member court.
“It is a remarkable testament to America that a fourth Jew can be nominated to the court and that his religion is not an impediment,” said Marc Stern, general counsel for the American Jewish Committee.
If confirmed, Garland would fill the seat held by Antonin Scalia, who died last month.
Stern said he believes it unlikely that Garland’s religion will “generate substantial opposition from those who would say there are too many Jews on the court. Nobody is threatening violence against the Jews, as happened in Europe when they thought the Jews were too powerful. … It’s unprecedented in the long history of the diaspora that you have an institution as powerful as the Supreme Court and that there could be four members who are Jewish when Jews constitute less than 2 percent of the population.”
“It’s remarkable to us, not to anybody else,” he added.
But it is likely to be politics and not anything else that derails Garland’s nomination. Just minutes after Obama finished announcing his selection in the White House Rose Garden with Garland at his side, Senate Republican Majority Leader Mitch McConnell took to the Senate floor to affirm his commitment to block the nomination.
It is “about a principle and not about a person,” McConnell stressed.
He justified his decision by quoting a 1992 speech by then-Senate Democrat Joe Biden when he was chairman of the Senate Judiciary Committee in which he said the Senate should not hold hearings to fill a Supreme Court vacancy in an election year. Biden insists the Republicans have misrepresented his position.
McConnell said he is convinced that Obama’s decision to announce a nomination knowing the Republican-controlled Senate would not consider it was made “to politicize it for the purpose of the election.”
A CBS-New York Times poll released this week found that 53 percent of Americans think the Senate should hold a vote on the Garland nomination; 42 percent say the Senate should wait for the next president to nominate a justice. Seventy-five percent of Democrats polled said the vote should be taken now, while 65 percent of Republicans polled said the vote should wait.
In a Gallup Poll, also released this week, 52 percent of Americans say Garland should be confirmed, while 29 percent oppose his confirmation.
Sen. Charles Schumer (D-N.Y.) pointed out in a statement that Garland is a “thoughtful jurist with impeccable credentials who has already garnered overwhelming bipartisan support for a job that requires nearly the exact same criteria as a Supreme Court justice. He gets the impact of the court’s decisions on hardworking Americans in the real world. We hope the saner heads in the Republican Party will prevail” so that hearings can be held.
“If Merrick Garland can’t get bipartisan support no one can,” he added.
Nathan Diament, executive director for public policy for the Orthodox Union, speculated that should former Secretary of State Hillary Clinton win the presidential election in November, “you could imagine a scenario in which the Republicans would want to confirm him if he is perceived as a moderate and they are worried that Hillary might nominate someone who is more liberal.”
Asked what would happen should Republican New York businessman Donald Trump win the presidency, Diament replied: “As Yogi Berra once said, predictions are difficult, especially when they are about the future.”
But all of these political machinations appeared to be the furthest thing on his mind as Garland, 63, stepped before the microphone to accept Obama’s nomination. As he did so, he suddenly became overcome with emotion and, choking up, thanked Obama for “the greatest honor of my life.”
Born to a Jewish parents, Garland, a Chicago native, was raised as a Jew. He has worked in Washington since the 1970s, first as a clerk to Supreme Court Justice William J. Brennan Jr., then a private lawyer, an assistant U.S. attorney and, since 1997, a federal judge.
Garland is a Harvard Law School graduate who married a fellow Harvard graduate, Lynn Rosenman, in a Jewish ceremony in 1987. She sat next to their two daughters as he credited his family with his success.
He recalled that his grandparents “left the Pale of Settlement at the border of Western Russia and Eastern Europe in the early 1900s, fleeing anti-Semitism and hoping to make a better life for their children in America.”
Garland said they eventually made their way to Chicago and that his father, Cyril, ran a small business from their basement. His mother, Shirley, whom Garland said was watching the proceedings on television, headed the local PTA “all the while instilling in my sisters and me the understanding that service to the community is a responsibility above all others.”
His wife’s grandfather, Samuel I. Rosenman, was an advisor to Franklin D. Roosevelt during World War II.
In accepting the nomination, Garland also spelled out his judicial philosophy, saying a judge “must be faithful to the Constitution and to the statutes passed by the Congress. He or she must put aside his personal views or preferences and follow the law — not make it. Fidelity to the Constitution and the law has been the cornerstone of my professional life, and is the hallmark of the kind of judge I have tried to be for the past 18 years.”
In announcing Garland as his nominee, Obama said he anticipated the Republican response but asked that they reconsider.
“I simply ask Republicans in the Senate to give him a fair hearing and then an up or down vote,” he said. “If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair. It will mean everything is subject to the most partisan of politics, everything. It will provoke an endless cycle of more tit for tat and make it increasingly impossible for any president, Democrat or Republican, to carry out their constitutional function.”
“The reputation of the Supreme Court will inevitably suffer,” Obama added. “Faith in our justice system will inevitably suffer. Our democracy will ultimately suffer as well. … He is the right man for the job. He deserves to be confirmed. I could not be prouder of the work that he has already done on behalf of the American people. He deserves our thanks and he deserves a fair hearing.”
Editor's Note: An earlier version of this story had erroneously said Garland's father was Protestant. In fact, his father, Cyril, was Jewish–the son of Max Garland and Rose Kaplan. Both Cyril and Max are buried in the same Jewish cemetery in Chicago.