Obama’s Supreme Court Nominee: Checkmate

Professor Brendan BeeryBlog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery explores the ongoing political battle over the United States Supreme Court nomination process. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at WMU-Cooley Law School, and is a frequent legal expert in the media.

Were I to advise an opponent of President Obama in just about any situation, I would say this: Don’t bring a checkerboard to a chess match. The President has put Republicans in a jam by nominating United States Circuit Judge Merrick Garland to be the next associate justice on the United States Supreme Court. There is no constitutional principle that compels the Republican-controlled Senate to confirm Garland. The Constitution provides only that the Senate must advise and consent; there is no timeline for its doing so, and the question whether the Senate may neglect to offer any meaningful advice or consider giving its consent for almost a full year is likely a political rather than a legal question. But that doesn’t mean that Garland’s chances are anywhere near zero.

Garland is the most qualified person for the job. That alone makes his nomination difficult to oppose. But the political dynamics at play make this a mouse trap in obstructionists’ cookie jar.  And it’s armed.

It’s no mistake that the President announced his nominee the morning after voters substantially clarified the presidential race. No sooner did Donald Trump and Hillary Clinton emerge as prohibitive favorites to become their parties’ nominees for president than Merrick Garland emerged as the President’s nominee for the seat left open after Antonin Scalia’s death. What you or I believe will happen in the upcoming election is not terribly important as to how this Supreme Court nomination will play out, but what Republicans in the Senate believe could be dispositive. And they seem to believe that Donald Trump will be steamrolled by Hillary Clinton; as has now been widely reported, Senate Majority Leader Mitch McConnell has gone so far as to give his Republican colleagues the green light to run against Trump to hold onto their own seats if he becomes the Republican nominee for president.

That leaves Republicans in the Senate staring down the barrel of a judicial 12-gauge that has Hillary Clinton’s finger on its trigger. Merrick Garland might be described as an extreme moderate; he takes the middle road at breakneck speeds. He is not an ideologue in any sense, which is to say that his intellect is not corrupted by any deep psychological need to conclude one way or another. He is simply a decent man with a good heart who applies reasonable legal principles to solve the cases before him. While he cannot be said to be a rigid absolutist in the mold of Clarence Thomas (or Antonin Scalia), he is also no raging liberal. This is, after all, the man who had Timothy McVeigh put to death.

So the dare is on. Republicans will have several months to decide whether they should seat this nominee on the Court. If public-opinion polls show Hillary Clinton poised to trounce Donald Trump (or Ted Cruz, or whomever the nominee might be), expect deep fissures to form in a wall of resistance that was thrown up as an ideological hissy fit rather than as a bastion of principled statecraft. By the time November rolls around, President Obama will have granted his opponents their wish: he will have withdrawn his moderate nominee and left them to deal with whatever far-left liberal judge Hillary Rodham Clinton sends their way. They won’t be able to stonewall for another four years, after all. “Go ahead,” the President is saying. “Reject my nominee.  I dare you.”

To that end, do not expect this President to use a recess appointment (which he is constitutionally entitled to do) or any other gimmick to get Merrick Garland seated on the Court. That is not the game that is being played here, and President Obama is not going to save his opponents from themselves. It is unlikely that President Obama will be deeply wounded if Garland never authors a Supreme Court opinion about abortion, LGBT equality, the death penalty, or the environment. If it is not Garland but somebody else who authors those opinions, the deeply wounded will more likely be those who could have kept the Court from listing leftward to the tipping point, but failed to do so.

Of course, with its aging justices, the Court is likely to list leftward under a Hillary Clinton administration regardless of the outcome of this nomination fight. So maybe Republicans will hedge their bets. There is always the chance that she will lose the election, and if she wins, the conservative project to remake the American judiciary will be over anyway. So why act now?

To see where this fight is going, keep one eye on the opinion polls and the other on the calendar.

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