Why it’s virtually impossible to cover Merrick Garland.

Why It’s Virtually Impossible to Cover Merrick Garland

Why It’s Virtually Impossible to Cover Merrick Garland

The law, lawyers, and the court.
May 10 2016 5:48 PM

No News Is No News

Why it’s virtually impossible to cover Merrick Garland.

Supreme Court nominee Merrick Garland arrives for a meeting with Sen. Ron Wyden, on Capitol Hill April 28, 2016 in Washington, DC.
Supreme Court nominee Merrick Garland arrives for a meeting on Capitol Hill, April 28, 2016, in Washington, D.C.

Mark Wilson/Getty Images

The only experience more absurd these days than trying to actually be Merrick Garland —dutifully attending courtesy meetings that lack any meaningful courtesy and painfully enduring what is surely the most insulting nonconfirmation season in American history—is trying, as a journalist, to cover Merrick Garland and his stalled nomination. 

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Because there is virtually nothing happening each day, there is virtually nothing to write about each day. And because we don’t write about it each day, voters continue not to know that it is going on each day. And since so many Americans don’t know about what isn’t happening to the empty seat at the Supreme Court each day, that all adds inexorably to the vague general impression that they must not care about it. And since they don’t seem to care about it, it hardly makes sense to write about it. Right?

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If we can all now agree that something isn’t news if it doesn’t insult Muslims or berate women, then I guess Merrick Garland isn’t news. And because Garland faces a brick wall of inaction, the handful of actions he does take seem completely futile.

The latest such gesture came on Tuesday, when the White House sent the Senate Judiciary Committee Garland’s carefully prepared answers to its usual judicial nominee questionnaire. (This move, which is normally standard practice by invitation, was done unsolicited this time around.) So then, when there is something to write about, it’s usually just a stunt that isn’t really a stunt. The fact that there are no balloons or former supermodels proves that nothing really important is happening. To boot, Supreme Court reporters generally think this is a political story, while political reporters largely believe this is a Supreme Court story. So the noncovering of the not-story persists.

The result is that it’s been 55 days since the president announced Garland’s nomination, and the judge is now routinely banished to half a column on page A-14. This, despite the fact that the court is clearly operating in all sorts of diminished ways as a result of what will likely be a more-than-yearlong vacancy. As Washington Post reporter Robert Barnes recently noted, the court has accepted fewer cases for next term, and there is a question about how the big important issues now facing the court can be resolved in any definitive fashion this year.

So how is this story that is actually kind of hugely important ever going to matter, both to journalists and to voters? Well, Chief Justice John Roberts—who could bring serious attention to the issue were he to choose to do so—has opted to stay above the fray despite being the GOP’s new public enemy No. 1. He isn’t going to respond to the efforts to draw him in or fence him out. Which means that Garland and the White House are left trying to turn the fact that there is no story to tell, every day for 55 days and counting, into a glittering news story. This is near impossible when footage showing Garland walking the Senate corridors for discourteous courtesy meetings is about as exciting as the Garland not-story visuals can get.

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One potential story is about close Senate races and whether the Garland obstruction is making it harder for blue-/swing-state Republicans like Kelly Ayotte in New Hampshire and Ron Johnson in Wisconsin to win re-election. Even longtime Iowa Sen. Chuck Grassley—the chair of the do-nothing Senate Judiciary committee—is facing a race this fall that may prove trickier than he expected. (Grassley remains unbothered.)

Maybe another story to tell is about the money being spent on this fight. As Politico noted this week, conservatives are outspending liberal groups by vast orders of magnitude on ads supporting the Garland blockade, with millions already having been poured in. But that’s just process, and process is boring.

Perhaps a horse race story? While the composition of the Supreme Court is not really on voters’ radar, polls pretty consistently find that when voters learn about the Garland nomination, they support having a vote more than they support doing nothing. And according to a recent survey from the admittedly left-leaning Public Policy Polling firm, 65 percent of voters favor hearings for Garland. When voters are faced with the possibility of a future President Trump selecting their next few justices, the results are starker. The presumptive Republican nominee is trusted by 38 percent voters to select the next Supreme Court justice and just 57 percent of voters in his own party, according to PPP. This puts Senate Republicans between the rock of their pro-gun base that demands they uphold the blockade and the hard place of moderate Republicans who don’t think Trump will choose wisely. Trump has yet to name a single possible SCOTUS nominee, a list he promised to put forth nearly two months ago. He is fond of his sister however.

Indeed the party seems to be finding itself increasingly confused about whether continued obstruction is really the smart play here. Right after Trump became the presumptive GOP nominee, the conservative site RedState ran a piece warning Senate Republicans to “confirm Merrick Garland before it is too late.” It’s not just the anti-Trump blogosphere. On Meet the Press this past Sunday, Sen. Jeff Flake, Republican of Arizona, accidentally admitted out loud to having the exact same political and moral calculus as RedState. Demonstrating that this issue has nothing to do with letting the people decide before the next election, Flake said, “if we come to a point, I’ve said all along, where we’re going to lose the election, or we lose the election in November, then we ought to approve [Garland] quickly. Because I’m certain that he’ll be more conservative than a Hillary Clinton nomination come January.”

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Senate Majority Leader Mitch McConnell continues to hold the former line. In a statement last Thursday his spokesman Don Stewart insisted that this is still about the people: “Republicans continue to believe that the American people should have a voice in this decision and the next president should make the nomination.”

To be clear then, the current GOP position is that we should “let the people decide” (McConnell), unless they pick Clinton, in which case the very same Senate that will not have voted while they waited for the people to decide should hastily vote in a lame duck session after the people have decided, but without letting them decide (Flake).

Still, to focus too much on Flake’s gaffe is to miss the truly ironic coda to the longstanding pretext of “letting the people decide” on Antonin Scalia’s replacement. Because the current confusing message coming out from Senate Republicans isn’t just “let the people decide unless they screw it up in November” or even the more truthful “let the gun lobby decide.” No, the best part of the latest anti-Garland justification is that his opponents are now crowing that people don’t care much about the composition of the court in the first place. Here, for instance, is Ed Morrissey at Hot Air delighting in the fact that “[w]hile the Beltway media has focused on the dramatic standoff between both ends of Pennsylvania Avenue, voters everywhere else have largely yawned.” So, the fact that the people don’t care is the real reason we need to let the people decide.

This is the lay of the land, and we in the media had best figure out how we are going to move forward with it: There is nothing interesting about nothing happening to a 63-year-old judge. Moreover, the court is, by design, secretive and built of paper, and stories about Merrick Garland’s paper answers to questionnaires will never compete with stories about Donald Trump’s teeny tiny hands. Even the fact that “everybody yawns” when told about a Supreme Court vacancy being blocked in an unprecedented manner in U.S. history isn’t a story. But that doesn’t mean it shouldn’t be.