by Professor David L. Sloss

Via Wikimedia

Via Wikimedia

I wrote on this blog about three weeks ago that President Obama has an opportunity to create a liberal majority on the Supreme Court for the first time since 1972.  His recent nomination of Judge Merrick Garland to fill the seat vacated by Justice Scalia appears to be well calculated to take advantage of this opportunity.

The current Supreme Court is evenly divided between four liberals and four conservatives. (Justice Kennedy is often the swing vote, but he is conservative by any reasonable definition of that term.) When Justice Scalia died, Senate Republicans recognized the risk of losing a conservative majority on the Court for the first time in decades. Hence, they threatened to block any Obama nominee. If Obama had nominated a candidate who was perceived to be excessively liberal, the Senate Republicans may well have executed that threat. However, Judge Garland’s nomination puts them in a difficult position.

Judge Garland is generally seen as a moderate. In 2010, Senator Orrin Hatch, a Republican Senator from Utah and a former Chairman of the Senate Judiciary Committee, described Garland as a “consensus nominee” who could easily be confirmed. Several Republican Senators who previously refused to meet with any Obama nominee are now willing to meet with Judge Garland. Judge Garland is the oldest Supreme Court nominee since 1971, when President Nixon nominated Lewis Powell. Age matters because Garland will presumably spend less time on the Court than a nominee who is ten years younger. Thus, from the standpoint of Senate Republicans, his comparatively old age is a plus.

At this point, a decision to reject Garland’s nomination would pose three distinct risks for Senate Republicans.

  • First and foremost, if Hillary Clinton is elected, she might succeed in appointing a younger, more liberal Justice. That would be a huge loss for the Republicans.
  • Second, if Donald Trump becomes the Republican nominee – which seems increasingly likely – no one knows who he would nominate to fill the Scalia vacancy. From the perspective of conservative Republicans in the Senate, there is no guarantee that a Trump nominee would be more attractive than Garland.
  • Third, with Donald Trump and Ted Cruz as the leading contenders for the Republican Presidential nomination, “establishment” Republicans are becoming increasingly concerned that the Republican Party will be seen as the party of obstructionism. A refusal to vote on Obama’s nominee would reinforce that negative image of the Republican Party.

In light of these considerations, the most likely scenario is that the Senate will defer action until it becomes clear that Donald Trump will be the Republican Presidential nominee. At that point, expect Senate Republicans to “declare victory.” They can legitimately argue that their strategy succeeded by forcing Obama to nominate an older moderate, rather than a younger liberal. Then they will vote to confirm Judge Garland. We will have a liberal majority on the Supreme Court for the first time since 1972 because Garland will tend to vote with the Court’s liberals.

If my prediction is correct, we should all view this confirmation battle as a victory for the democratic process. The system is designed to produce Supreme Court Justices who are in the mainstream of American legal culture. In this case, the system appears to be working.