By Ben Cunningham
This article was originally published in Issue 10, Fiftieth Year of The Minstrel (March 3, 2016). Click here to view the entire issue. The article has been updated to reflect President Obama’s recent nomination of Merrick Garland.
With Supreme Court Justice Antonin Scalia’s passing Feb. 13, President Barack Obama must nominate a new judge to serve as a justice of the Supreme Court. This nominee is subject to confirmation by the U.S. Senate with a majority vote. On March 16, President Obama nominated appeals court judge Merrick Garland to fill the vacant justice position.
The nomination will likely shape the ideological alignment of the Supreme Court for the next two decades, giving President Obama remarkable power to shape the highest levels of legal interpretation long after his presidency is over. Obama has already successfully nominated two justices to the Supreme Court, Justices Sonia Sotomayor and Elena Kagan, who are both significantly younger than their associates on the Court. While Kagan and Sotomayor were both significantly progressive; Garland, in contrast is centrist and moderate.
In American jurisprudence, or legal theory and precedent, Supreme Court justices are typically defined by their stance on Constitutional interpretation, relegated to one of two camps: judicial restrainers, conservatives who favor original interpretation, and judicial activists, progressive judges who tend toward a contemporary interpretation of the Constitution. Justice Scalia was a staunch conservative on the issue of the Constitution. Obama’s nominees, Sotomayor and Kagan, have a much more liberal interpretation. Garland’s judicial record points toward a liberal philosophy, but one much less revisionary than Sotomayor or Kagan.
A number of Republicans, including Pennsylvania Sen. Pat Toomey, have openly stated that they do not plan to consider any Supreme Court nominees appointed by President Obama. Primary presidential candidates Sens. Ted Cruz, R-Texas, and Marco Rubio, R-Fla., voiced similar objections, with Rubio going so far as to say, “We cannot afford to have Scalia replaced by someone like the nominees [Obama]’s put there in the past.”
Former Florida Gov. Jeb Bush stopped short of condemning Obama’s nominee at face, saying that he believes the Senate should reject any nomination that is “outside the mainstream.”
It is clear that Republicans are reluctant to accept any of Obama’s nominees, but this reluctance could have an impact on the upcoming presidential election. Obama’s nomination of Garland constitutes a progressive judge with more moderate tendencies than Justices Sotomayor or Kagan. Senate leadership will likely attempt to prevent this nomination from coming to the floor, but if it does come to a vote, there’s a distinct possibility that Republican moderates will vote in favor of confirming the candidate. Republican senators who are running for re-election this year will be more likely to confirm a moderate nominee later in the election cycle, after primary contests have been decided.
Garland was also considered for nomination in 2010. Utah Republican Orrin Hatch described Garland as a “consensus nominee,” at the time. This sentiment may hold true for Hatch or Republican moderates like Jeb Bush, but it’s unlikely the Senate will reach consensus on Garland any time soon. At the end of the day, President Obama (and to a lesser extent the Democratic presidential nominee) have the political upper hand when it comes to the Supreme Court appointment.