MENU

Stalemate over Garland nomination continues despite some signs of change

Obama Supreme Court_Ota (2).jpg
Senate Majority Leader Mitch McConnell, R-Ky., walks to the chamber just after President Barack Obama urged Senate Republicans to grant hearings and a confirmation vote to Merrick Garland, his nominee to replace the late Justice Antonin Scalia on the Supreme Court, on Capitol Hill in Washington, Wednesday, March 16, 2016. McConnell has been steadfast in his refusal to hold a confirmation for any nominee during the waning months of ObamaÂ?s presidency. (AP Photo/J. Scott Applewhite)

Fourteen days. That is how long it has been since Merrick Garland was nominated to replace Justice Antonin Scalia on the Supreme Court.

While two weeks may seem like a short amount of time, the potential for the days to continue to add up looms, given the Republican resistance to an Obama nominated Justice, it seems likely the stalemate will continue.

"I don't think we're anywhere near a Republican revolt that would cause the nomination to move ahead at this point," said Richard D. Friedman Professor of Law at The University of Michigan.

Republicans, "seem determined to stonewall [the nomination]," something they are perfectly capable of doing at this juncture, Friedman said.

Friedman explained that had Justice Scalia's death and Garland's subsequent nomination occurred a year ago, the Republicans would face backlash for resisting the nomination. This timing, however marks "a very interesting intermediate stage in which the President has a strong argument," and "Republicans have an argument they can make," without being questioned.

One Republican attempted to depart from the regular narrative, opening a formal inquiry into why Garland recused himself from a judicial misconduct case involving allegations one of the judges in his circuit had sex with a 16-year-old girl decades ago.

RELATED |Congress opens inquiry into Obama Supreme Court nominee recusal in teen sex case

As Roll Call's Jonathan Allen described, there were numerous political reasons for Rep.Jason Chaffetz, R-Utah, to pursue the inquiry.

Ultimately, Allen wrote "there were bigger reasons to stay away from it."

The greatest reason Allen described is that "Chaffetz would have blown up Senate Republicans' strategy of killing the Garland nomination on the 'principle' that the president shouldn't appoint a Supreme Court justice in his final year in office."

"Imagine," Allen proposed "how much more difficult it would be for Senate Majority Leader Mitch McConnell to maintain that inaction while Chaffetz acted to undermine Garland."

Majority Leader Mitch McConnell has repeatedly said that his resistance is not about the nominee, but the very concept of an Obama nomination.

McConnell, Friedman described "went out on a limb being as aggressive as he was as quickly as he was."

RELATED |Rallies urge GOP senators to back Supreme Court vote

Since then, he's been staying out on that limb, but Friedman noted that Republicans facing upcoming elections have started abandoning him.

"It appears that whether with a wink from the Republican leadership or not, Republican senators who consider themselves vulnerable are peeling away," Friedman said.

Friedman cited Mike Kirk and Susan Collins as examples of the winnowing support.

Discussing her belief that a hearing should be held on Garland, Collins conceded that McConnell is "not real happy with me," Buzzfeed reported in a write-up on an interview Collins had done.

"I'm sure there's some people who are unhappy with me, but this is a solemn responsibility and is very important," Buzzfeed quoted Collins saying.

Collins, Buzzfeed noted, admitted to being "'perplexed' by McConnell's position given the possible outcomes of the presidential election."

"Let's say that Hillary Clinton is the next president of the Untied States," Buzzfeed quoted Collins saying, before describing the hypothetical that is the worst possible outcome in this scenario.

Describing the potential fallouts, Joseph Ura,Associate Professor of Political Science at Texas A&M University noted that the way the situation plays out could be negative regardless of who wins the election.

If current GOP front-runner Donald Trump ends up in The White House, Ura said "there's uncertainty about the kind of judge," he would be inclined to nominate.

The Republicans, Ura said could find themselves in a situation where the newly elected president of their party selects a nominee "out of line with principals Republicans have advocated."

"Having Garland who is relatively moderate, relatively old," as the nominee, Ura said made him "surprised," the GOP had not been more open to considering him.

If a Democrat takes the White House, Ura said there's the risk that they may "push an even more aggressive nomination on the Senate."

As Friedman described, if a Democrat like Clinton is nominated, and the Senate is more Democratic at that time than it is now, Clinton could decide "to appoint somebody who not only might be more liberal, may be younger."

Given that Supreme Court Justices are appointed to a lifetime term, many have pointed out that Garland's age makes him more palatable as a nominee. Experts noted that this tenure is unique to nominations, highlighting its impact.

Scalia, Friedman noted is "only the second Justice in 60 years to die on the court,"which Friedman described as "a very unusual situation."

"Very, very few other established democracies appoint judges to their highest court for life," explained Matthew Hitt, Assistant Professor of American and Judicial Politics at Louisiana State University.

RELATED |Scalia remembered for love of God, country, family

"Lifetime appointments mean the consequences of any confirmation reverberate for decades, and that vacancies occur unpredictably," Hitt noted, just as is the case with Scalia's death.

The odd timing of Scalia's death created the odd conundrum we are currently in, something the Obama administration seemed cognizant of when selecting their nominee.

"In terms of the resume you would expect a president to put forward, Judge Garland has the thing you would tick off all the way from his outstanding record at Harvard to his service on the D.C. circuit," Ura said.

"In some respects, he's right out of central casting for a Supreme Court appointment."

As Hitt explained Garland is "a particularly brilliant choice," by President Obama.

"Not only is he as well-qualified as anyone in the country, Republican Senator Orrin Hatch praised him and mentioned him as a good choice just a week before the nomination was actually made."

Friedman speculated that the pick could have been the result of a calculation of selecting someone who is extremely able, has a stainless record, is seen as moderate and is a little older in order to force the Republicans hand.

With a candidate like that, Friedman said, one of two things happens. "Either the candidates gets through because enough Republicans in the senate will say 'does it makes sense to resist' given the political cost."

Or the Republicans resist and absorb "a significant political cost."

RELATED |Merrick Garland: A closer look at Obama's reported Supreme Court nominee

Hitt noted that "the danger for Republicans, I think, isn't looking weak necessarily, but rather in attracting primary challengers and negative campaign spending from far-right/Tea Party organizations."

One example of this cause and effect occurred with Senator Jerry Moran from Kansas, Hitt said.

"When he contradicted the leadership's position and said the Senate should hold hearings and a vote on Judge Garland, interest groups quickly rallied to threaten him with a far-right primary challenger," Hitt described.

"It seems likely that for many Republican Senators, the perceived danger from their right flank is the real threat in considering the Garland nomination."

"It's true that vulnerable Republican Senators up for election that is, Senators in states that voted for President Obama, such as Mark Kirk in Illinois, are taking a softer line than Majority Leader Mitch McConnell and Judiciary Committee Chair Chuck Grassley," Hitt seconded, adding that the backlash they are facing is indicative of how heated this nomination has become.

"Given that even holding a face-to-face meeting with Judge Garland is viewed as some sort of concession shows just how entrenched this opposition is," Hitt said.

"I guess McConnell feels as long as he's got Grassley and 41 senators they can resist a closure vote, he can sit tight," Friedman speculated.

"It may be that McConnell will be the last person to change," Friedman said of the Majority Leaders stance on the nomination.

RELATED |Rhetoric battle over Garland SCOTUS nomination flares up in U.S. Congress

It's a completely viable scenario, especially given the fact that experts saw very little political risk in a Republican shifting their opinions on Garland.

"They probably look a little bit silly," Friedman conceded, presented with the hypothetical scenario in which Republicans change their mind and go along with the nomination.

"I think they're also aware that this is a high stakes game," Friedman added.

"This nomination would shift the ideological balance of the court more than any other in recent years."

Assuming that Garland is, as described "relatively moderate," Friedman said, he remains "so much further to the left than Scalia."

Given Scalia's reputation as a conservative powerhouse, the nomination of even a moderate like Garland would "move the ideological balance of the court a great deal," Friedman said.

At present moment, Friedman described "Republican leadership says [its] worth the political cost, [of] looking a little silly in the end to take the chance."

Calling the level of obstruction on display "unprecedented," Hitt said that "given the stakes (a likely shift in the median vote of the Court), it seems likely that this stalemate will drag on for some time."

Hitt stressed that we are already beginning to see the impact of this stand-off, as the court is deadlocked with an even number of Justices.

"We just observed the potential consequences of this nomination yesterday: the Court handed down a 4-4 ruling in a case involving the right of public sector unions to force non-members to pay dues that left a lower court pro-union decision in place," Hitt described.

"This result means that the law remains unchanged, but only in part of the country (in this instance, the western 9th Circuit)."

"More broadly," Hitt explained "the Court's work has dramatic implications for questions of life, liberty, property, and the allocation of political power."

RELATED |Tied 4-4 after Scalia's death, high court gives unions a win

"When the Court is divided in this manner, the answers to the important questions depend only on which part of the country you happen to reside in," Hitt said.

"Some might say we then will have an arbitrary and inconsistent application of our deepest constitutional principles across the country, and this undesirable situation shows no signs of being resolved any time soon."