Republican senators have been bracing themselves to reject President Obama’s Supreme Court nominee. Who, they asked, could the president possibly choose to replace reliable, ultra-conservative Antonin Scalia? But Obama’s clever selection puts Republicans in an awkward position.
Making an appointment is what Obama is supposed to do, according to Phoenix attorney and legal commentator Marc Lamber. “This is the mandate of Article 2 of the Constitution. To do otherwise would be a dereliction of his duty,” he says.
And so, Obama has nominated DC Circuit Court of Appeals Chief Judge Merrick Garland to fill the vacant seat created by the death of Scalia. Garland is best-known for overseeing the domestic terrorism prosecutions of “Unabomber” Theodore Kaczynski and Oklahoma City bomber Timothy McVeigh. In 1997, the Senate confirmed Garland to the DC Circuit with broad bipartisan support—seven of the Republicans still in the Senate today are among those who voted for him.
“Since taking his current bench, Garland has left a track record of politically moderate appellate decisions,” says Chad Ruback, an appellate lawyer in Dallas. “As a federal court of appeals judge, he has been regarded by Republicans and Democrats alike as being intelligent, hard-working, and fair. Garland’s opinions are no more liberal than those of current Supreme Court Justice Anthony Kennedy, who was appointed by President Reagan.”
Damned if they do, damned if they don’t
How can Republican senators tactfully object to Garland? “If they vote against the confirmation or refuse to conduct a vote at all,” says Ruback, “they will be perceived by swing voters as being obstructionist and uncompromising.”
Doing so could jeopardize reelection bids for senators from all but the most conservative states, and it could also alienate voters who are currently undecided between voting Republican or Democratic in the presidential election. On the other hand, if they vote to confirm Garland, Republican senators risk appearing too willing to support Obama’s agenda, which could draw strong challenges in their next Republican primary.
Expect no vote until after November
Is ensuring reelection more important to senators than preventing a questionable swing vote on the Supreme Court? Conservatives hope not.
“Even the appointment of a moderate justice like Garland will swing the balance of the Supreme Court considerably on a host of issues because he will be taking the seat of a strict constructionalist in Scalia, who was a consistently reliable conservative vote,” says David Weisenfeld, a legal editor who has covered more than 200 cases at the US Supreme Court. .
Republicans appear prepared to take their chances on waiting out the election before taking a vote on the Garland nomination. The Supreme Court is most likely to finish the remaining term with only eight members.
Electing Hillary may push a vote through
Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley have vowed to not consider any nominee until after the November election, but that will give them a small window of opportunity should a Democrat be elected president.
“Garland’s best chance for confirmation may come if Hillary Clinton and a Democratic Senate are elected,” says Weisenfeld. “Republicans may suddenly reverse field in the interim between November and next January 20, because President Clinton would likely appoint a more liberal-leaning justice.”
“This is a high-stakes game of poker,” says Ruback. “If the Senate does not confirm Garland, and Hillary Clinton or Bernie Sanders is elected president, neither of them will have any incentive to nominate a political moderate to fill this Supreme Court seat.”
Garland may just be Republican’s best option
If Republican senators are holding out for a nominee who is essentially a clone of Justice Scalia, those senators are likely setting themselves up for a monumental disappointment. Even if Ted Cruz became president in January, he would be unlikely to find a nominee who could match Scalia’s unique ability to meld an extremely conservative philosophy with the personal rapport that engendered politically moderate colleagues to sign-off on many of his opinions.
It’s one thing for the Senate to block nominees for the remainder of Obama’s term, but trying to do so through an entire four-year presidency is simply not feasible. “By scuttling the Garland nomination, Republican senators could be paving the way for a much more liberal Supreme Court justice taking the bench next year,” says Ruback. “That’s hardly the legacy that a conservative senator would want to leave.”
