Garland Nomination – Why Are Some Republicans Caving In?

By Roger J. Katz, Attoney at Law and Stephen L. D’Andrilli

Tom Coburn
Tom Coburn Adds His Name To The Growing List Of Present And Former Republicans Who Say The Senate Should Hold A Vote On Garland.
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -( “Twelve voices were shouting in anger, and they were all alike. No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.” ~ Animal Farm, by George Orwell, 1945

Can we be certain that Senate Republicans are dead-set against the confirmation of Judge Merrick Garland to a seat on the U.S. Supreme Court?

Well, we know that at least one Senate Republican, Mark Steven Kirk, would like very much to see Obama’s nominee confirmed.

This should come as no surprise to anyone; for Senator Kirk, the Republican, is, as we know, a virulent opponent of the right of the American people to keep and bear arms. See the Arbalest Quarrel article, titled,Senator Kirk Can’t Whitewash Merrick Garland; the Record Speaks for Itself.” 

But, what of other Senate Republicans – those who ostensibly support the Second Amendment, such as Senator Lindsey Graham of South Carolina.

Well, as we recently pointed out, the Senator made poignantly clear to CNN anchor Kate Bolduan that, if a confirmation is held, Judge Garland will be confirmed. Take a look at the Arbalest Quarrel article, titled,Read the Fine Print: Garland’s Confirmation Under the Microscope.” 

Would that concern Senator Graham, presumably a staunch defender of the Second Amendment? Apparently not. After all, Senator Graham voted to confirm Obama’s first two short-list nominees to the high Court: Sonya Sotomayor, and Elena Kagan. The jurisprudential philosophy of these two Obama nominees is well known, and it is one diametrically opposed to that of Justices Thomas and Alito, and opposed, as well, to the jurisprudential philosophy of the late Justice Scalia.

So, then, if Senator Graham harbored any doubts about the qualifications of Justices Sotomayor and Kagan, it obviously was not enough to prevent him from voting for their confirmation to the U.S. Supreme Court. The attitudes of Justices Sotomayor and Kagan toward the Second Amendment are well known and they are contrary to those held by Justices Thomas, Alito, and to the late Justice Scalia.

Of course, Senator Graham may have been duped. But that is highly unlikely. He is highly intelligent. Could any United States Senator truly doubt that Obama would nominate a judge to the high Court without having given careful consideration to that person’s jurisprudential philosophy on a range of Constitutional issues and to that person’s methodology for deciding cases and to the impact that person’s jurisprudential philosophy would have on Americans’ fundamental rights through that person’s written decisions.

Recently, in the New York Times, former Republican Senator Tom Coburn, Oklahoma, added his voice to the growing chorus of seemingly staunch supporters of the Second Amendment who are calling for action on Obama’s nominee, Merrick Garland.

Oddly enough, former Republican Senator Coburn says, according to the NY Times, in the article, titled, Tom Coburn, Ex-Senator, Says Merrick Garland Should Get a Vote,” that Garland should get a vote but that this should not be taken to mean that Garland should be confirmed. 

Wait a minute! If Garland gets a vote there exists the possibility that he may be confirmed, and, according to Senator Graham, if Garland gets a vote, he would be confirmed, no doubt about it.

So, then, what is the rationale for holding a vote if past and present Republican Senators agree that Garland will be confirmed, notwithstanding their remarks that Garland ought not to be confirmed to a seat on the high Court.

Obviously, if there is no vote on the confirmation, Garland cannot be confirmed. It is logically impossible for Garland to be confirmed without a vote of the Senate. But, if Garland cannot possibly be confirmed, then why hold a vote at all? Does the Senate have nothing better to do than to hold a vote on Obama’s nominee to the U.S. Supreme Court if Garland could not possibly be confirmed? The entire vote issue on Garland is a red herring, and should be laid to rest until the next U.S. President assumes Office.

If Coburn and others believe a vote on Obama’s nominee is required by law, that is false. While there is debate among legal academicians as to the import of the “advice and consent clause,” one point is abundantly clear, the U.S. President cannot, on his own authority, lawfully, unilaterally appoint a person to the U.S. Supreme Court.

If, as is presently the case, the Senate does not consent to the nomination, allowing a vote on the nomination would not be consistent with the consent requirement. In fact there is nothing in the appointment’s clause and in the “advice and consent” clause of Article 2, Section 2 of the U.S. Constitution that discusses the matter of voting on a President’s nominee at all. In the present matter the Senate has spoken. The Senate has advised the President that it does not consent to the nomination of Judge Garland.

Now, if Coburn and other like-minded Republicans were to argue that the Senate owes the President a vote on his nominee as a matter of professional courtesy, which, then, has nothing to do with the Senate’s obligation under the “advice and consent” clause well, consider: does the risk of snubbing a President’s nominee outweigh a threat posed to the continued preservation of the Second Amendment?

It would seem that Tom Coburn would very much like to see Garland confirmed.

As the NY Times reports Coburn saying, “I don’t know if he [Merrick Garland] deserves a hearing. . . . He deserves a vote out of the [Judiciary] committee.” Tom Coburn, Ex-Senator, Says Merrick Garland Should Get a Vote,” Really? Coburn appears to be saying, although tacitly, that the Senate should dispense with a public hearing altogether – that the Senate should just hold a closed-door vote, out of the purview of the public. That would be fair? To whom? Certainly not to the American people who have more than a little stake in the matter.

The mainstream media and those who call for a hearing, or a vote, or both, constantly carp that the Senate Judiciary Committee’s motivation for denying Garland a hearing and/or vote is simply to be attributed to “politics.” But, that’s mere subterfuge.

The Senate Judiciary Committee is well aware that, if Garland receives a vote – whether that vote comes after or in lieu of a hearing – he will be confirmed. The House knows it; the Senate knows it; the President knows it; and the American people know it.

If Garland is confirmed, the sanctity of the Second Amendment will be threatened in a manner never before seen. A threat – any feasible threat – to our fundamental rights ought never be casually dismissed as mere “politics.” That is why Senator Grassley’s Judiciary Committee must hold fast and not be swayed by rhetoric coming from surly Democrats, disloyal Republicans, and from the mainstream media that echoes and trumpets their sentiments.

Once again, we are drawn back to Orwell’s allegory, “Animal Farm,” which has as much application today as it had in Orwell’s time: “No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.”

As between those Senate Democrats who are calling for the Senate Committee on the Judiciary to convene a hearing and/or hold a vote on Obama’s third nominee to the U.S. Supreme Court, Judge Merrick Garland, and those Senate Republicans who are calling for the Senate Committee on the Judiciary to convene a hearing and/or hold a vote on Obama’s third nominee to the U.S. Supreme Court – as we look at each of them – as we move back and forth among them – one to the other – from Democrat to Republican, and from Republican to Democrat – it becomes increasingly difficult to distinguish between them. So many Senate Democrats and Senate Republicans are looking awfully like one another. Aren’t they?

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I have said on many occasions that as soon as a candidate says what I hold close to my heart I will support that person. I am a vet and an 11th generation AMERICAN. My ancestors came here before the keel of the Mayflower was laid. My family has sacrificed themselves in all of our wars and I have 9 relatives on the Nam wall in D.C. My comments on this election are simple. Elect a democrat and we will lose our rights granted by the constitution. Elect a member of the establishment and we will have the same “me… Read more »

Bob Shell

The same senators listed here are the same ones who complain about Trump. They are rinos & should join the Democratic party as that is what they are. Gutless rinos & pretend to be on our side. That is why we need Trump. Did you hear that the Bushes threw a temper tantrum & won’t attend the Republican convention because their little Jeb got beaten by Trump. Along with Romney & McCain they won’t go. So who cares they are a pack of rinos.


Because they are gutless douchebags.


Better teach your children and grand children
about GUNS because you and they will soon
need them to protect from THEIR so called government.


WHOA ! The Senate “OWES” the president a vote and a confirmation ?? Has anyone counted the times this liar in the white house has bypassed, intentionally, both houses of congress in his zeal to force unconstitutional measures on the American people ? What we ”OWE” him is a jail term ! Kirk and any others still serving in the Senate who want to agree with this fraud need to have public announcements printed and released that they are formally resigning from the Senate and any future government jobs including sanitary engineer. (garbage collector) This is not JUST POLITICS !… Read more »


Obama’s level of expectation is unreal. Obama used his “pen” to veto Republican backed legislation that made it’s way out of Congress and now he expects Republicans to back his Supreme Court appointee? NOT!


The sanctimonious Republican party has lost it’s direction and sense of duty. My senator and congressman are touting how they stood up to Obama, yet both voted for Obamacare and the Omnibus bill. I certainly do not trust them on this one.

Wild Bill

Nor do they deserve your trust, c.j. What they deserve is your very vocal oversight!


The sanctimonious Republican party has lost it’s direction and sense of duty. My senator and congressman are touting how they stood up to Obama, yet both voted for Obamacare and the Omnibus bill. I certainly do not trust them on this one.

Wild Bill

Yes, c.j., unless we pressure and threaten our Repub representatives, they do what an all too liberal Repub Party tells them to do. We, however, have a unique opportunity to threaten our Senators and Congress persons, with Trump poised to be the President. And that opportunity is this: If Trump becomes president, he will also be the head of the Republican Party and all the current Repub. Party elites that currently tell Senators and Congress person what to do will be out of a job. So our Senators and Congressional Reps better not allow any hearings on Merrick until they… Read more »


Ummmm….the final vote for Obolacare was 60-39 – NO Republicans voted for it. Just to be clear…


The Republicans are a bunch of bought and paid for cuckold representatives who serve the same special interests that the democrats serve. That’s what makes Trump so popular. He is not an established politician unlike all the others in the primary race except Rand Paul and Ben Carson. Ted Cruz is a Bush Crime Family Made Man from the 90s and oh yeah, a Canadian who put on a good show making people think he is some outsider but was really an insider. The Republicans have had both houses and the power for a while now to stop Obama in… Read more »

kenneth kaplan

What freedom loving american would want a moron like Garland on the Supreme Court? The court is suppose to uphold our rights.Not have fools who were appointed to the court change the laws that they are to up hold. Garland hates the 2nd Amendment. That is not a person who should be on the bench.


The supposed representatives of the people have confirmed ever single radical that Obutthole has appointed. Including muslims to head Homeland Security and the CIA.


I looked, and found that, nowhere in OUR Constitution is it enumerated how many justices should sit on the high court. It was FDR who first packed the court with hand picked liberals.

Wild Bill

FDR tried to pack the S.Ct., but Congress would not increase the number of justices. So, actually, FDR failed to pack the S. Ct.