Nomination of Judge Merrick Garland to Supreme Court

Washington on the President’s Pick

The president’s nomination of Judge Merrick Garland puts the Republican leadership, which announced within hours of Justice Antonin Scalia‘s passing that it would not vet any Supreme Court nominees, between a rock and a hard place. Judge Garland, a moderate candidate, enjoyed considerable support from GOP leadership for his appointment to the D.C. Circuit, considered by many to be second only to the Supreme Court in prestige. The refusal to consider any nominee, especially one like Judge Garland with such a distinguished reputation, is political gamesmanship and casts the Supreme Court as a political institution.

It is irresponsible to leave the Court without a full panel of justices for the next year, which is at least how long it would take for the vacant seat to be filled after the next president is sworn in and a nominee is confirmed. In the interim, landmark decisions on abortion, affirmative action, aspects of the Affordable Care Act and many other important issues may be held in judicial purgatory until Justice Scalia’s seat is filled. Alternatively, an equally divided Supreme Court will leave lower court decisions in place, but those rulings would only be controlling within the lower courts’ jurisdiction.

Senators’ attempts to abdicate the legislative body’s constitutional role of advice and consent of Supreme Court nominees contravenes the spirit of our Constitution, which doesn’t contemplate one branch of government from preventing another branch of government from fulfilling its constitutional duty.

The president’s pick is a brilliant political choice. He selected a moderate judge with an unimpeachable record of qualifications, who is equally appealable/objectionable to the left and the right. He will not be Scalia’s polar opposite, as conservatives feared. He also is likely to be more conservative than the pick constitutional experts believe Hillary Clinton would make were she to win the Democratic nomination and the general election. The risk of a less politically palatable nominee is heightened by the controversy surrounding Donald Trump’s status as the clear frontrunner for the Republican nomination and questions surrounding his electability in the general election.

The filling of a vacancy on this nation’s highest court should be beyond petty political maneuvering. However, if that is the path Republicans choose, they might do well to consider that a moderate in the hand is better than a prospective liberal in the bush.

Tanya Washington, professor of law, focuses her research and scholarship on issues related to educational equity and issues arising at the intersection of domestic relations, race and children’s constitutional rights. An amicus curiae brief co-written by Washington was cited by Justice Anthony Kennedy in the majority opinion of Obergefell v. Hodges.

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