President Barack Obama on Wednesday nominated appeals court judge Merrick Garland to the Supreme Court to fill the seat left vacant by the death of Justice Antonin Scalia. For the past month, Republican leaders have vowed to deny any nominee a hearing and a vote, arguing that the seat should be filled by the next president. They reiterated that stance Wednesday following Garland’s nomination.
We asked assistant teaching professor Dan Urman, who teaches the course “Understanding the Modern Supreme Court,” and Wendy Parmet, Matthews Distinguished University Professor of Law with expertise in constitutional law, to answer some important questions centered on Obama’s nomination, the ongoing political battle, and the legal landscape ahead.
Who is Merrick Garland?
Garland, 63, is the chief judge for the United States Court of Appeals for the District of Columbia Circuit. Obama called Garland “one of America’s sharpest legal minds,” and noted that early in his career he clerked for two judicial appointees of Republican President Dwight Eisenhower and, later as a federal prosecutor, oversaw the investigation and prosecutions in the Oklahoma City bombing case in 1995. He earned the support of a majority in both parties when he was confirmed to the D.C. Circuit in 1997.
Urman, who studies the intersection of the legal and political processes, said that in nominating Garland, Obama focused more on the nominee’s professional merits than the political implications of his selection. “His legal credentials are impeccable,” Urman said of Garland. “I don’t think Obama could’ve done much better.”
Parmet agreed, saying, “He’s chosen someone eminently hyper-qualified.” However she said it would be challenging to look beyond the political firestorm this looming nomination has set off. “It’s hard to think about this nomination at this moment in history divorced from the politics,” she said.
Republican leaders have refused to consider any nominee. What happens next?
A political standoff. According to Parmet, there aren’t any legal steps the White House can take to force Congress to act. “Under the Constitution, I don’t think you could say the Senate is acting unlawfully to hold up the nomination,” she said. However, Parmet underscored that the Senate’s refusal to consider a nominee, a situation that has in the past played out in the lower courts, is discouraging. “We’re seeing the withering, the fraying of the underlying norms of constitutionalism to allow the Constitution to work,” she said.
Urman, for his part, believes Republicans will stand their ground and that Garland won’t be given a hearing or a vote. However, he said the political tides could change course quickly, pointing to the fact that the battle in Congress over raising the debt ceiling ended with legislation being passed at the 11th hour. He added that senators could feel pressured by voters during the upcoming two-week recess.
OK, let’s say the political tides do shift and Garland is indeed confirmed. How would his addition impact the balance and makeup of the Supreme Court?
“Right off the bat he’d transform it,” Urman said, noting that the addition of someone with a more liberal ideology than Scalia would no doubt shift the balance. For example, Urman suggested that Garland could be the immediate swing vote in cases involving affirmative action, campaign finance, and gun control. Parmet said Garland’s confirmation would lead to a liberal- to moderate majority that could make a difference in cases involving topics such as abortion and voting rights.
Urman added that with Garland in the fold, the Supreme Court would have “more elite training than any Supreme Court in American history”—with three justices having gone to Yale University, six having attended Harvard, and four having previously clerked for a Supreme Court justice.