On March 16, President Barack Obama nominated Judge Merrick Garland to serve as the nation's 113th Supreme Court justice to fill the vacancy left by the death of Antonin Scalia in February.
Garland, a moderate, serves as chief judge of the U.S. Court of Appeals for the District of Columbia. His nomination has stirred up additional controversy in the Republican-controlled Senate, which has vowed to prevent a vote on the nomination during the rest of Obama's presidential term.
Below, two Princeton University scholars discuss the nomination and how it may affect future legal decisions. Jonathan Kastellec is an assistant professor of politics and an affiliated faculty member at the Center for the Study of Democratic Politics (CSDP). His main research area is judicial politics, but he also has broad interests in the study of American politics. Thomas S. Clark is a visiting senior research scholar at CSDP and the Asa Griggs Candler Professor of Political Science at Emory University. Clark's research focuses on judicial politics, American political institutions and rational-choice institutionalism.
Question: Why do you think President Obama nominated Garland for the Supreme Court?
Clark: President Obama is in a bit of a difficult position. Senate Republicans have sworn to block anyone he nominates. They will likely follow through on that promise, especially if the nominee is someone who their political base finds unacceptable. Garland may create difficulties for the GOP, though, because he is widely considered qualified and moderate. The public will likely widely support confirming him. This was likely a good route for President Obama, if what he wanted was to make a successful nomination.
Kastellec: President Obama had two options when choosing a nominee. He could have appointed a more liberal justice (as well as a woman or racial minority) in order to rally the Democratic base — such a nominee would basically have no chance of being confirmed by the Senate. Or he could actually try to get a nominee confirmed, even if the chances of that happening are small. He chose the latter option.
Q: Republicans have been fighting to wait until the next president is elected to choose the 113th justice. How might this recent nomination influence them?
Kastellec: The Republican Senate leadership has maintained they won't consider any nominee, but there is some chance they may reconsider if it looks like Hillary Clinton is likely to win the election. A 63-year-old moderate may look more appealing than having a President Clinton appoint a much more liberal justice in 2017 — especially if it looks like the Democrats will also take control of the Senate. I've examined these questions in two blog posts with Chuck Cameron for the Washington Post and Vox.
Clark: Republicans have praised Garland in the past. In fact, their views on him make it difficult to claim that another president would nominate someone they perceive to be a better fit for the job. This makes it difficult to explain why they will not consider the nomination, unless they want to concede it is simply partisanship. Moreover, as the presidential election moves closer, especially if it looks increasingly likely that Hillary Clinton will be the president, Senate Republicans might grow anxious about the prospect of a new Democratic president, with lots of political capital, making that nomination.
Q: President Obama urged Republicans to hold a timely vote on the nomination. Do you think this will happen? If not, how long of a process could this be?
Clark: The Republicans have indicated they will not even consider the nomination. If they do, I suspect they will wind up voting on Garland's nomination. However, I expect they will hold out as long as possible. I do not think they will take action that President Obama will consider "timely."
Kastellec: As of now, Republicans are promising not only to prevent a vote on Garland's nomination, but they have said they will not even meet with him (meaning that there actually won't be a "process.") That seems like the most likely outcome, but the Republicans could change their mind as we move toward the election. One possibility others have raised is that if Clinton wins the election (and, particularly, if the Senate goes Democratic), Republicans could then decide it makes sense to confirm Garland during the lame-duck period in November and December.
Q: Garland has been described as brilliant and is known for coordinating the Justice Department's response to the Oklahoma City bombing in 1995. In your opinion, is he a good fit for the job?
Kastellec: Garland is clearly highly qualified, having served as Courts of Appeals judge for 19 years. In terms of ideology, he seems likely to be more moderate than the other liberal justices, but still much more liberal than the conservative bloc of justices on the Supreme Court.
Clark: Garland's professional experience is that of a highly qualified judge. His reputation also suggests he is well liked and highly regarded. He is 63 years old, which progressive activists will argue is less ideal than a younger justice who might serve longer, but the same fact might allay Republican concerns about the long-term impact of confirming him to the Court.
Q: If confirmed, how might he, as a moderate in the SCOTUS lineup, influence legal decisions going forward?
Clark: Garland is regarded as a political moderate, but his views are somewhat more nuanced. He is progressive on things like environmental protection and gun control but more conservative on issues like criminal prosecution. In this sense, he is like the mirror image of Justice Scalia, who was very conservative on most issues but famously progressive on civil liberties and criminal procedure. Indeed, on those issues, he was often to the left of even Justice Stephen Breyer. So Justice Garland's confirmation might move the court somewhat slightly to the right on a handful of civil liberties issues, but it is most likely to create a solid five-justice progressive majority on most other issues.
Kastellec: One reason this nomination is so contentious — in addition to it occurring in an election year — is that any nominee appointed by President Obama would significantly shift the ideological balance of the Supreme Court. This is because Justice Antonin Scalia was a reliable conservative vote. So replacing him with a more liberal judge — even one who is more moderate than the other liberals — would mean a significant shift to the left for the court as a whole.