Prof. Rudalevige Reacts to President Obama’s Supreme Court Nominee

Andrew Rudalevige

Andrew Rudalevige

President Barack Obama has made his choice for the next U.S. Supreme Court Justice. He wants veteran appeals court judge Merrick Garland, from the D.C Circuit,  to replace the conservative Justice Antonin Scalia, who died suddenly last month. The Republican leadership meanwhile has consistently said they will oppose any Obama nominee, and that the choice of Scalia’s replacement should be made by the next president.

We asked Andrew Rudalevige, Bowdoin’s Thomas Brackett Reed Professor of Government, for his reaction to the development.

Why do you think Obama picked Merrick Garland?
He picked Merrick Garland on the grounds of Garland’s experience and legal credentials, and with the expectation that—if confirmed—he would serve as part of a reliably liberal voting bloc on the Court (see below). But also at the forefront of the choice was the fact that Garland is a very hard nominee for the Senate majority to oppose on substantive grounds. Sen. John Cornyn (R-TX) has already proclaimed that the nominee would be a “piñata” for the Republican caucus. But Garland is a pretty hardy piñata.

Indeed, he is a former federal prosecutor who worked extensively on the Oklahoma City terrorist bombing case in the mid-1990s. There are book-sized collections of bipartisan quotes praising his intelligence, moderation and judicial temperament. He’s gone through Senate confirmation before, winning 70+ votes–and the ‘no’ votes were mostly about whether his seat on the Appeals Court should even exist, rather than about his qualifications. He’s 63, so one can’t argue he’s too young or should wait his turn (he *has* waited his turn–he’s been considered for Court openings before.)

One minor surprise is that Obama chose a white male (from Harvard Law, no less) as his nominee, given his efforts to diversify the judiciary generally and the Supreme Court specifically. Garland doesn’t represent a “first” for the Court, as Judge Sri Srinivasan would have. The Garland appointment allows Obama to say that all he cares about is experience and merit. (And thus, that Senate Republicans don’t.)

The declaration that no Obama nominee will receive a Senate vote, or even a hearing, has already revved up the Democratic base somewhat. On the one hand, Garland is the least exciting of the likely candidates for that base to rally around. Democratic activists would probably have been more energized around the nomination of one of the other apparent finalists, whether Judge Paul Watford or Judge Srinivasan – also extremely qualified jurists, but African-American and Indian-American, respectively. On the other, this gives Hillary Clinton, assuming she is the Democratic nominee, the chance to drive up turnout among minority voters by promising to appoint someone different to the Court. One result of that, in turn, might be to help Garland get confirmed–perhaps after November 8.

United States Supreme Court building

US Supreme Court

If Garland is confirmed, what would this do to the ideological balance of the Supreme Court?
It’s not always accurate to place the Court on a simple left-right ideological dimension, and of course justices sometimes surprise the presidents who appointed them. (Dwight Eisenhower supposedly said that he had only made two mistakes while president, and they were both sitting on the Supreme Court.)  Garland has a solid reputation as a moderate jurist.

But with the Court in its current configuration it’s clear that any appointee to the left of Justice Kennedy would have an important impact on issues ranging from abortion rights to regulatory interpretation. And one effort by political scientists to classify past decisions on a left-right axis has Garland quite a ways to the left of Justice Kennedy. In fact, it predicts he would fit somewhere between Justices Kagan and Ginsburg. (See http://www.nytimes.com/interactive/2016/03/16/us/politics/garland-supreme-court-nomination.html ).

There’s little expectation that a Justice Garland would be actively on the prowl for past precedent to overturn. But his confirmation would certainly create a cluster of five justices well to the left of the other four.

The ball is very much in the GOP’s court now. How do you see their options?
If Garland’s nomination followed traditional patterns, he would receive a Senate floor vote well before that body’s summer recess. But of course this is no typical year.

The preemptive announcement by Senate Majority Leader Mitch McConnell (R-KY) that the Senate would ignore any Obama nominee provided a unified front for the Republican caucus to rally around – which, with rare exceptions (one of them being Sen. Susan Collins from Maine), they did. There is no Constitutional validity to the claim that a popular referendum should be held on a Supreme Court nomination. On the other hand there is no Constitutional requirement for prompt Senate action. So we are watching a simple political gamble.

The flurry of near-identical press releases that followed the announcement confirms that at least for now, the Senate majority thinks it has more to gain by rolling the dice on November’s results than by confirming someone who will change the balance of the Court. Remember that gridlock on Pennsylvania Avenue makes the Court even more central to the political scene. With no new laws passing, the Court’s role in interpreting older laws like the Clean Air Act or the Immigration and Naturalization Act is crucial to policy outcomes.

So, the cost to Republicans of a new, liberal (or even moderate) nominee is potentially quite high. If they win the presidency and hold the Senate, the gamble pays off. In the meantime, changing positions to allow a hearing (or worse, a vote) would appear as treachery to the Republican base.

By the way, for all the rhetoric about “letting the people decide,” I would not expect a Republican Senate to automatically confirm a President Clinton nominee either. (Since in this scenario the people would also have decided to return a GOP Senate majority.)

This political math will start to change, I think, only under two circumstances. One is if it really looks as if this issue is causing harm to Republican candidates in key Senate races – for instance in Iowa, Ohio, Pennsylvania, and Florida. This is possible, but not probable.

The other is after the election but before the new Congress is seated–if Democrats were to have a majority of the Senate ready to work with President Clinton in January 2017. In those circumstances, it could make sense for the lame duck Senate to confirm Merrick Garland rather than await a Clinton nominee.

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