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Merrick Garland is just chilling while the Supreme Court issues split decisions without him

President Obama used the court's deadlocked immigration ruling on Thursday to slam the GOP for refusing to confirm his nominee to replace Antonin Scalia.

by Olivia Becker
Jun 23 2016, 4:35pm

Photo by Michael Reynolds/EPA

Since Justice Antonin Scalia died in February and left the Supreme Court with only eight members, many high-profile cases have ended in 4-4 tied decisions, including a split ruling on Thursday that effectively scuttled President Barack Obama's efforts to shield millions of undocumented immigrants from deportation.

Obama named Judge Merrick Garland as Scalia's replacement in March, but his confirmation process has been stalled by Senate Republicans, who have more or less indicated they'd rather confirm a Labrador retriever to the Supreme Court than anyone Obama has picked.

"I don't know how many times we need to keep saying this: The Judiciary Committee has unanimously recommended to me that there be no hearing," Senate Majority Leader Mitch McConnell told CNN in February, before Obama even nominated Garland. "I've said repeatedly and I'm now confident that my conference agrees that this decision ought to be made by the next president, whoever is elected."

Obama used the deadlocked immigration ruling on Thursday to slam the GOP for refusing to confirm Garland, accusing Republicans of using partisan politics to prevent the Supreme Court from delivering a definitive ruling on a critical issue. "America should not let it stand," he said, adding that his immigration actions can't proceed until the court has a ninth member to break the stalemate.

Related: A split Supreme Court just derailed Obama's deportation protections

In the meantime, Garland is keeping a relatively low profile as he continues to be stonewalled by Senate Republicans. Since receiving the initial flurry of attention in March, his name has not come up much during in the current election, or elsewhere in the national political conversation.

Garland remains a sitting judge on the US Court of Appeals for the District of Columbia, but he has recused himself from hearing any cases since he was named as Obama's nominee.

The clerk's office issued a statement in March announcing that Garland would be sitting out all future cases but will "continue with his administrative duties as Chief Judge and as a member of the Judicial Conference of the United States." The clerk's office declined to elaborate on what exactly those administrative duties are, only saying that they have to do with standard "financial and personnel" matters in his office.

That's not an unusual decision for a judge waiting to be confirmed, said Ronald Mann, a professor at Columbia law school and writer at ScotusBlog.com. It's up to the judge to decide if they want to continue actively taking cases and many choose not to.

"Judge Garland is a sitting judge on the DC Circuit and has workload obligations like all judges," Mann explained. "The parties to the cases pending in the DC Circuit are waiting for their cases just like all litigants."

A spokesperson for the clerk's office also said it was "standard practice" for judges to stop taking cases during the confirmation process.

And judging by the Republicans' ongoing refusal to acknowledge Garland, much less confirm him to the Supreme Court, that process will probably last a while longer.

Related: The Supreme Court just cleared the way for more assault rifle bans

McConnell, along with nearly all his Republican colleagues, has vowed to wait until the next president is sworn in before they will even consider holding confirmation hearings for Garland. (Senators Susan Collins from Maine and Mark Kirk from Illinois are the only two Republicans who have supported giving Garland a full hearing).

"We're not going to do that. We've said we want to wait for the election," Senator John Cornyn of Texas, the second-highest Republican in the Senate, told CNN.

In the meantime, Garland is keeping himself busy with one of his main philanthropic causes: the J.O. Wilson Elementary School. Garland has tutored at the Washington, DC school every other Monday for the past 18 years, and he also requires his legislative staff to do the same. Last Wednesday, Garland gave an emotional "If you can dream it, you can do it!"-themed commencement speech to the graduating class of fifth graders.

"I know your parents and teachers are getting a little teary today," the Supreme Court nominee told the audience of 10-year-old kids. "And I know that because... I'm getting a little teary, too."

Garland plans to continue tutoring at the school even if he ends up joining Supreme Court, according to the Washington Post.

What was once a relatively simple process of confirming a Supreme Court nominee has gotten increasingly drawn out in recent years out as Congress has been mired in political stagnation. In 1986, Justice Scalia was confirmed with a vote of 98 to 0. In 2005, Justice Samuel Alito was confirmed with a much closer vote of 58 to 42.

Follow Olivia Becker on Twitter: @oliviaLbecker