On March 16, President Obama nominated Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, Merrick Garland, to replace conservative associate justice, Antonin Scalia, to the Supreme Court, following Justice Scalia’s unexpected death in February. Garland, widely viewed as a relative centrist and consensus-builder for the D.C. Circuit Court, has been hailed by both Democrats and Republicans (as well as sitting Supreme Court justices including Chief Justice John Roberts) as an able jurist.
However, Garland may end up never taking his seat on the high court. This is due to the position taken by Senate Majority Leader Mitch McConnell-and largely supported by the Senate Republican caucus-that no nomination be considered by the Obama Administration to the Supreme Court vacancy given the limited time remaining in his term (which concludes on January 20, 2017).
This approach has been criticized for keeping the Supreme Court at an effectively 4-4 split, with the generally liberal justices Kagan, Breyer, Sotomayor, and Ginsburg balanced with the more conservative justices Alito, Thomas, Kennedy, and Chief Justice Roberts. In terms of practical impact, the 4-4 split significantly raises the likelihood of Supreme Court ties for the remainder of the 2016 term (and likely at least the beginning of the 2017 one). In the event of a tie, the Supreme Court upholds the ruling of the lower court that made the decision (traditionally in a brief per curiam opinion) without setting the broad, nationwide precedent that majority opinions frequently set.
The Supreme Court reached its first tie vote two weeks ago, in the real estate case Hawkins v. Community Bank of Raymore, which involved a complaint by two women who claimed that banks that offered loans to their husbands which required their signatures as guarantors were discriminatory. This case, while not a particularly polarizing one politically, is likely to be one of possibly many tie votes over the course of the next year (some involving far more explosive issues, like an Obamacare suit over religious protections as well as the Obama administration’s immigration deferral executive orders).
The prospect of ties such as these, as well as the poor political optics of maintaining opposition to meeting with or holding hearings regarding Judge Garland’s nomination, have created a few cracks in Republican opposition to Senate Majority Leader McConnell and Senate Judiciary Chairman Chuck Grassley’s position: several senators up for tough reelection fights (including Senators Portman, Ayotte, Johnson, Toomey, and Kirk) have indicated their intention to meet with Judge Garland. Interestingly, Senator Kirk and conservative Kansas Senator Jerry Moran have also indicated a desire to move forward with hearings over Judge Garland’s nomination, even if in the end they choose not to support him.
Efforts to break the Democrats’ position have also largely been unsuccessful thus far. Conservative groups have begun spending money on ads targeting Democratic senators in conservative states to not move forward with President Obama’s nomination, including Senators Heitkamp, Donnelly, Manchin, and Tester, but they have thus far been unsuccessful in breaking the Democrats’ uniform position.
Assuming opposition from the Senate Republican caucus remains firm, the question becomes clear: what happens next? Although some senators (including Arizona Senator Flake) have suggested moving forward with Judge Garland’s nomination during the lame duck session in the event that a Democrat (presumably Hillary Clinton) wins the presidential election or the Democrats retake the Senate, this is complicated by both logistics and message consistency.
From a scheduling standpoint, moving Judge Garland’s nomination through in such a compressed time span could well prove impossible. Although it appears that the lame duck period between November 8 (election day) and January 20 would be a sufficiently large amount of time to move a Supreme Court nominee through the Senate confirmation process, the Senate is not likely to be in session for either the Thanksgiving week (November 21-25) or for the Christmas Holiday (from December 19 to the end of the year). This would provide the Senate Republican caucus with only a handful of weeks to consider his nomination, and that assumes that there would not be much else to do (also unlikely).
Probably more importantly, such a move would defy messaging. Senate Majority Leader McConnell has indicated not just that the people should have a say in who becomes the next justice, but that it is the next president that selects him or her. As Judiciary Chairman Grassley has concurred with this language, this would indicate that a lame duck Senate consideration would be out of the question.
With that in mind, who will likely take up that seat? Should Donald Trump be elected president, he has indicated that he would compile a list of 10 potential nominees for the vacancy, all vetted by the conservative Heritage Foundation (this vetting process was announced to allay concerns from conservative Republicans that Trump would not appoint a conservative to fill the position). This makes it likely that the justice to replace Justice Scalia would maintain the ideological balance of the Supreme Court, with 5 conservative justices and 4 liberal ones. If Ted Cruz manages to secure the presidency, he too would appoint a conservative to fill the vacancy.
In the event that either Hillary Clinton or Bernie Sanders becomes the next president, they will have two choices. The first is whether or not to carry over President Obama’s Garland nomination to the 115th Congress. Such a nomination would be an effective way to bridge the divide with Senate Republicans, but would not be as progressive as many left-leaning groups would have preferred. Senator Sanders has already indicated that he would not select Judge Garland to that position if he were president, but Secretary Clinton has not made her position clear regarding the merits of Judge Garland’s nomination to the high court.
Both Democratic candidates (as well as the Republican ones) could easily end up being boxed in by tough political realities. If the Republican Party is able to maintain the Senate but lose the White House, they could ensure that no truly ideologically pure judge replaces Justice Scalia. The same is true if a Republican gains the White House but loses the Senate.
However, in the event that one party gains control of both branches, this could significantly reshape the direction of the court. If Secretary Clinton secures the presidency and the Democrats take control of the Senate, it would not be surprising for Clinton to appoint a more left-leaning judge, where the Citizens United decision would likely make for a powerful litmus test. On the conservative side, a President Cruz with a Republican Senate could opt for a Roe v. Wade litmus test.
Based on current political realities, though, the path that appears most likely at this point is Judge Garland’s nomination will not be considered by the United States Senate in this term (barring a significant sea change among Senate Republicans). Secretary Clinton, most polls and the Electoral College suggest, will be the next President. The only major wild card that remains is the composition of the Senate. What appears likely is that a very divided Senate will be the outcome of the 2016 elections, possibly even a 50-50 split. With that distribution and a President Clinton, it would not be surprising for her to pick a more left-leaning justice to replace Scalia, and will likely secure a majority of the Senate to confirm the appointment (the remaining Republican Senators in blue states that survive reelection would feel pressure to confirm any eminently qualified justice, as would moderate Republicans like Maine Senator Susan Collins and Alaska Senator Lisa Murkowski). As a result, the Senate Republican majority’s position regarding the nomination of a moderate judge to the Supreme Court may inadvertently create a durably center-left Supreme Court.