In the wake of Justice Antonin Scalia’s untimely death, the ideological future of the court hangs in the balance. The court’s eight members are now split on many interpretive issues, which would make a new justice a key swing vote in certain cases. President Obama nominated Merrick Garland, from the Federal Court of Appeals for the District of Columbia Circuit, to fill Scalia’s spot.
Garland has served as a judge of the Federal Court of Appeals for the D.C. Circuit since his appointment by Bill Clinton in 1997, becoming Chief Judge in 2013. He studied at Harvard Law School and previously worked as a federal prosecutor.
Garland’s colleagues hold him in high regard, and his background and experience mirror those of many Supreme Court justices. Obama previously considered Garland for nomination in 2009 and 2010, but opted for the more liberal nominees Sotomayor and Kagan.
Garland has called the Constitution and law “the cornerstone of [his] professional life,” asserting the importance of rule of law over personal ideology. Republican politicians, however, are concerned with Garland’s record on the Second Amendment. Garland’s previous support for strict, controversial gun restrictions in D.C. opposed the Supreme Court’s Heller decision, which the Court could overturn with Garland ruling with the previous minority.
Contrary to expectations, President Obama has made the most conservative nomination by a liberal president in recent history, banking on Republicans rejecting Garland before consideration, thus making Republicans look uncooperative and obstructionist by not “doing their job,” even for a nominee who should receive bipartisan support.
The Senate must now exercise its constitutional duty to advise and consent to (or ignore) the president’s nomination. The Constitution dictates few particulars for the court. The court still functions with fewer than nine members and is not required to seat any specific number of judges.
Another liberal justice would swing the court majority firmly towards judicial activism, allowing judges to legislate from the bench and overrule state or local prerogatives. For this reason, the Republican Senators, expecting President Obama to nominate another extremely liberal justice, have refused to even consider confirming a nominee before Obama’s presidency ends.
By waiting for the next president, the American people could have a democratic voice in the future of the Supreme Court. Under the guise of increasing the democratic influence in government, both Republicans and Democrats in the Senate have attempted to wait out presidencies in hopes of securing a better candidate from a new president.
The senators should ask themselves, however, whether they honestly expect a better nomination from the next president. Since the frontrunners are an unpredictable nationalist populist and a power-hungry, flip-flopping, pandering career politician with a deplorable record and possible federal indictment, the Senate will likely not get a better nominee than Garland.
Republicans should wait and gauge the outcome of the primaries and general election matchup. With such bleak presidential possibilities, Senate Republicans’ ideal hope is for Senator Ted Cruz (after winning a contested convention and general election) to nominate a constitutional originalist. In the meantime, the Senate should at least hold hearings for Garland, and seriously consider moving to a confirmation vote.
The Republican senators are obstructing Garland to make a point of checking Obama’s presidential power. Both liberals and conservatives question Garland’s interpretive stance, which is a good sign of a compromise nominee.
In a less politically hostile and radical time, a candidate like Garland should receive overwhelming bipartisan support. As a Trump or Clinton presidency comes closer to reality, the senators should seriously consider confirming Garland.