The Senate should give Merrick Garland a chance
March 29, 2016
On March 16, President Barack Obama nominated Merrick B. Garland to replace the vacancy on the Supreme Court left by the unexpected passing of Justice Antonin Scalia. Garland, who is 63 years old and a graduate of Harvard Law School, is the chief judge of the United States Court of Appeals for the District of Columbia Circuit.JT
However, Senate Republicans, led by Majority Leader Mitch McConnell, have vowed to stop Obama from filling this vacancy as they want the next president, whoever that may be, to do so.JT Democrats have chastised this plan, as they say the Senate should perform its constitutional duty and vote on Garland’s nomination.
Both parties are being disingenuous; this is all about politics. Democrats have done the exact same maneuver as McConnell in previous years when they controlled the senate and a Republican controlled the White House. During such periods, Republicans made similar arguments about the senate needing to perform its duty and confirm nominees for judicial appointments.JT Clearly, this is really about politics and less about constitutional scruples. Since McConnell’s plan is truly a political calculation, an inquiry is needed to see if his plan is well-founded from a political perspective.
There are essentially three possible results for how McConnell’s plan will unfold. The first possibility is that Senate Republicans cave to outside pressure and confirm Garland. This would be accepting the fact that the ideological majority of the court, which has leaned right for multiple decades, would shift leftward.
However, Garland is seen by most as a moderate judge who leans slightly left. This would be in stark contrast to a nominee President Hillary Clinton or President Bernie Sanders would likely nominate if Scalia’s seat remains vacant if either of them becomes president. And at Garland’s older age, he would likely serve less time on the Supreme Court than most other justices in modern history.
The second possibility is to refuse to confirm Garland and hope that a Republican wins the presidency. This would maintain the ideological status quo on the court as a Republican would pick a conservative to replace Scalia. However, this is a high stakes gamble as there is no guarantee that a Republican will win the presidency. If a Democrat wins the presidency, a much younger and more liberal individual will likely fill Scalia’s seat rather than the more moderate and older Garland.
The last possibility, which has been alluded to already, is that Senate Republicans refuse to confirm Garland and a Democrat wins the presidency. In this situation, the more moderate Garland would likely be replaced by a younger, more liberal nominee. This is especially true if Democrats retake the Senate in addition to maintaining the presidency. From a conservative perspective, this would have a greater negative impact on the future of American law than the more moderate and older Garland would have.
With these three likely possibilities presented, Senate Republicans should strongly consider accepting Garland to the Supreme Court as failing to do so could result in a younger, more liberal individual replacing Scalia.
If Garland is nominated and Republicans win the presidency, this Republican would likely have the opportunity to replace Justice Ruth Bader Ginsburg’s seat, as she is 83 years old.JT Thus, even if Garland is confirmed, there is still a strong possibility that the conservative 5-4 majority on the court will be maintained. As such, confirming Garland is the safer bet that minimizes risk.
Lastly, refusing to consider Garland is seen by many independent voters as obstructionism. With the Republican majority in the Senate at risk of being lost, Republicans should not engage in conduct which will turn off independents. Doing so could cause Republican Senators in blue or purple states to lose their seats.
Although I personally mourn the passing of Justice Scalia on the Supreme Court, it would be in McConnell and Republican senators’ rational self-interest to confirm Garland.
President Barack Obama displayed a bipartisan effort in nominating the moderate Garland to replace Scalia. He should be rewarded for his efforts with at least an up-or-down vote.
Ryan is a law student at the University.