Garland, Bork, and DePinho

By

Leonard Zwelling

         President Obama has done exactly what any thinking person hoped
he would do.

He
chose a nominee for the vacant Supreme Court seat of Antonin Scalia who is
unassailable in his credentials, not a member of any of diversity’s many groups du jour, and right down the
middle in judicial temperament. His name is Merrick Garland and he is currently
the chief justice of the US Appeals Court in the District of Columbia, probably
the highest judicial post to which one can aspire short of the Supreme Court
itself.

         The Senate Republican leadership has thus far insisted that
this is an inappropriate act by the President in an election year and that the
appointment should have awaited the election of a new President so the people’s
will can be known.

         Excuse me. That’s not the way the Constitution works.

         There’s a vacancy in the Court due to an untimely death. The
President then appoints a replacement and the Senate acts to advise and consent
(or not). One of the Senate’s choices is NOT to sit on it.

         The Republican Party seems destined to commit political
apoptosis right in front of our eyes.

         First, it looks likely that the GOP will nominate a bigoted
billionaire bully to be its standard bearer in the fall. If Donald Trump is
indeed the nominee of the GOP, win or lose, the party will blow apart. It has been
bad enough that the GOP has been two parties for the past few years—Regulars
and Tea Party. Now we may have the Trump Troglodytes, the neo-cons who want to
burn down the Middle East, the libertarians, who want to stay home and let
everyone do what they wish, and the white shoe Republicans on Wall Street who
spent billions to prevent this from happening and found that the world was not
ready for any of its chosen candidates for President from Jeb Bush to Chris
Christie.

         As Linda Greenhouse notes in the linked article, much of the
Republican bluster will undoubtedly invoke the failed Bork nomination to the
Supreme Court of 1987. He was appointed by a Republican President (Reagan) and turned
down by a Democratic Senate. But unlike the claims of the GOP that Robert Bork
didn’t get a fair hearing, he did. He did his Senate office visits. He appeared
before the Judiciary Committee and was fairly turned down by them. Despite
this, the President insisted Bork get an up or down vote in the full Senate
which he did. He lost despite clearly being qualified because the majority of
the Senate found his judicial notions unacceptable in the climate of 1987. The
Constitutional process was covered on live TV.

         So if the Senate wants to fulfill its Constitutional duties,
it should give Judge Garland his hearing and a vote in both the Judiciary
Committee and on the floor of the Senate. If he loses, at least both the
President and the Senate have discharged their Constitutional duties and the
new President can start again in 2017. (The GOP may not like Hillary’s choice
though. They ought to think about confirming a middle of the road person now
before she hands them a lefty and does so after the Trump candidacy costs the
GOP the Senate.)

         Don’t you wish that could have been the case in 2011 when
Dr. Shine appointed Ron DePinho President of MD Anderson—a little faculty
advise and consent? I think a subcommittee of the Faculty Senate should have
held public hearings on DePinho’s fitness for the job and then the whole
Faculty Senate should have weighed in. Alas, that’s not the system under which
the President of MD Anderson is selected. Lucky for DePinho!

         President Obama did his job. Now the Senate must do its job
and give Judge Garland a hearing.

         Unfortunately, the system at MD Anderson is far more of an
oligarchy than is the government of the United States. You guys are stuck with
The Ronald for a long time and without so much as a hearing. It just doesn’t
seem right that a senior cardiologist and a bunch of political appointees can select
the leader of the state’s cancer center with no input from the governed.

Leonard Zwelling