March 17, 2016
Unless you didn’t happen to read any headlines yesterday, you likely are already aware that President Obama announced his nominee to fill the late Justice Scalia’s seat on the Supreme Court: Merrick Garland. Garland is currently the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, and has served in that role since February of 2013 (he has served as a judge on that court since 1997).
As expected (at least, if you’ve been paying attention to the political drama that erupted since Justice Scalia’s death), Senate Republicans responded to Garland’s nomination with a renewal of their vow to refuse to hold a hearing for any nominee put forward by President Obama – including Garland.
But if the Senate were to consider him, most agree that he is one of, if not the most objectively qualified candidate for the Supreme Court that Obama could have selected. He graduated as valedictorian from both his Skokie, Illinois high school and Harvard College (which he attended on scholarship), and graduated magna cum laude from Harvard Law School. After he graduated, he clerked for Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit, and then for Supreme Court Justice William J. Brennan the following year.
After a few years as a special assistant to Attorney General Benjamin Civiletti, he went into private practice, during which time he also taught antitrust law at Harvard Law School.
In 1989, he returned to public service as an assistant U.S. attorney in the U.S. Attorney’s Office for the District of Columbia. After briefly returning to private practice, Garland joined the new Clinton administration’s Department of Justice’s Criminal Division as deputy assistant attorney general.
Garland came to prominence in that role due to his involvement in several high-profile domestic terrorism cases, including the Oklahoma City bombing, the UNABOM, and the Atlanta Olympics bombings. Due to this involvement and the bipartisan praise he received for it, Garland was selected by President Clinton to replace Abner J. Mikva’s seat on the D.C. Circuit Court of Appeals.
Three months after his nominantion, he received a hearing before the U.S. Senate Judiciary Committee, but Senate Republicans did not then schedule a vote on Garland’s confirmation – not because they thought him unqualified but because many Republicans believed that Mikva’s seat shouldn’t be filled at all.
After Clinton won reelection in 1996, he re-nominated Garland, whose nomination was confirmed in a 76-23 vote.
With 19 years of federal judicial experience under his belt, he would join the Supreme Court with the most such experience of any of the current sitting justices at the time that they joined. Furthermore, he is well-respected among his judicial peers, with Chief Justice Roberts (with whom Garland is said to be friends) reportedly even commenting at his own confirmation hearing that “[a]nytime Judge Garland disagrees, you know you’re in a difficult area.”
Indeed, Garland is widely reported as being a moderate, with a conservative streak when it comes to criminal prosecutions. He is known for his narrow decisions nearly devoid of ideological slant, instead focusing on the law and precedent. He is greatly respected by members of both parties, and is potentially the least objectionable nominee President Obama could have possibly selected.
That being said, what are the chances that he will even receive a hearing before the Senate?
In short, not good.
While a hearing does not necessarily ensure that a vote will be held, considering how high-profile Scalia’s death and the battle over his replacement has been, any hearing would be heavily publicized. And considering Garland’s stellar credentials and uncontroversial background, it’s incredibly likely that Senate Republicans would find nothing of substance during the course of these hearings to justify blocking Garland’s nomination by refusing to hold a vote. That would spell trouble for a number of Senate Republicans who face contentious reelection battles and would need to draw support from independent voters to stay in office.
Without a hearing held, the issue becomes buried under other headlines, not least of which are the ongoing primary battles which have otherwise dominated national attention this year – which, considering the support among independent voters for the Senate to move forward with the nomination process – is exactly what Senate Republicans are hoping for.
Conversely, Republicans are also hoping to use the vacant seat as a political tool to drive conservative voters to polls, and proceeding as normal with the nomination process deprives the party of that motivator.
But on the off chance that Garland does receive a hearing and a subsequent vote, would it result in his nomination?
That’s incredibly difficult to predict. At this time, there is almost nothing that conservatives may be able to use to justify voting against his nomination, should it come to a vote. And while the majority of Republicans would vote against him just out of opposition to the rival political party, there are also enough Republicans that, if a vote were held, would likely support Garland.
And if that happens – however unlikely it may be – what could we expect from a Justice Merrick Garland?
Considering how few hot button social issues like abortion and same-sex marriage come through the D.C. Circuit (which typically handles regulatory and criminal cases), it’s very difficult to tell.
We do know that he seems to take the government’s side more often than not in criminal cases. On the other hand, there are other cases in which he seems to support plaintiff’s rights in civil causes of action. In addition, he seemed to support contested environmental regulations against industry challenges – while also supporting challenges from environmental advocacy groups.
Do these stances betray a pro-consumer, pro-environmental stance? Perhaps. But considering his reputation for stay well within the bounds of the law and precedent, it may be just as likely that he simply took no ideological position on those cases, and just ruled based on what he viewed as being in line with binding precedent at the time.
Of course, given the intransigence of Senate Republicans on this matter, it’s almost certain that this discussion is a moot point, since Judge Merrick likely won’t even receive a vote in the Senate.
On the other hand, there is the chance, however improbable, that President Obama could opt to appoint Merrick during one of the Senate’s many recesses before the end of his term – and Merrick’s appointment would last until the start of the next congressional session next year. And such a move isn’t unprecedented: President Dwight Eisenhower named Justice Brennan to the Supreme Court in 1956 – shortly before that year’s presidential election.
Whether Obama selects that option remains to be seen, but for now, the next move is the Senate Republicans’.