Oct/Nov 2016: Gaming the Garland Nomination

Washington Watch | October/November 2016
By Bruce Moyer

Appointments to the Supreme Court can have greater impact upon the affairs of state than possibly any other staffing actions authorized by the United States Constitution. The breadth of those consequences— including their impact on abortion rights, affirmative action, campaign finance, gun control and separation of church and state—has led to the continued impasse between President Barack Obama and the Republican- controlled Senate over the nomination of Judge Merrick Garland. Garland’s nomination has sat on the doorstep of the Senate without action, longer than any other Supreme Court nominee in over a century. The origins of the continued impasse over the Garland nomination began back on February 13, within hours of the unexpected death of conservative icon Justice Antonin Scalia, when Senate Majority Leader Mitch McConnell (R-KY) announced the Senate would take no action on any Supreme Court appointee that President Obama might name until after the American people had pronounced their choice for a new president in November, an event that stood nearly nine months away.

Despite McConnell’s warning, President Obama proceeded on March 16 to nominate Merrick Garland, the Chief Judge of the District of Columbia Circuit Court of Appeals. Legal observers at the time commented how surprisingly moderate Obama’s pick of Garland was, considering the unlikelihood of Obama getting anyone through the Senate and the likely political appeal of a younger, more progressive candidate in the ramp-up to the Presidential election. Garland is 63. Clearly, Obama was serious about Garland and the potential paths of getting him on the Court.

Garland’s Centrist Appeal
Garland’s centrist instincts, demonstrated for twenty years on one of the most closely watched appeals courts in the country, suggest to some observers a less politically liberal appointee, one more in the mold of Justice Anthony Kennedy than Justice Ruth Bader Ginsburg. That appeal to the center has prompted speculation by some Republicans, when confronted with the prospect of a Clinton presidency and what it could mean, that Garland represents a more appealing nominee than more liberal candidates Clinton herself could potentially nominate.

McConnell for his part has continued to close the door on any speculation that the Republicans might face that scenario. A Trump win would stop Garland’s nomination dead in its tracks.

If Hillary Clinton were to win though, especially if the Democrats regained control of the Senate, Garland’s chances for confirmation could improve considerably. Clinton has pledged her strong support for Garland, but has declined to rule out the possibility of naming her own nominee. Nonetheless, there are upsides for Clinton that action on a Garland nomination could provide, particularly during the lame duck session. That would clear the way for more focused attention by Clinton during her first 100 days on her legislative agenda, without the expenditure of political capital in a Supreme Court fight. The next president also could have as many as three more Supreme Court vacancies to fill over the next four years, looking at the current ages of Justices Ruther Bader Ginsburg (83), Anthony Kennedy (80) and Stephen Breyer (78).

The Calculus of Lame Duck Action
For his part, McConnell could continue to block a Garland nomination during the lame duck session, remaining resolute that nomination and confirmation of a Supreme Court candidate should proceed under the newly elected president and not before then. If that happens, a more incremental response from Senate Democrats could involve Obama’s renomination (with Clinton’s consent) of Garland in early January and confirmation hearings by the newly-installed Senate prior to Inauguration Day on January 20. A confirmation vote could then follow during the first days of a Clinton presidency.

Once installed, Merrick Garland and his colleagues would begin to reveal whether a significant shift on the Court had truly come about. None of these dynamics, of course, are likely to alter the fact that the next President will also face another judicial challenge of a different sort—roughly 100 federal district and appeals court vacancies, representing more than 10 percent of the federal bench, with significant opportunity for the new president to reshape the federal courts in significant ways.
Bruce Moyer is government relations counsel for the FBA. © 2016 Bruce Moyer. All rights reserved.

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