As we noted last week, the U.S. Supreme Court remains in a precarious position because Republican senators refuse to hold a confirmation vote on President Barrack Obama’s nominee to fill a vacancy on the court. Nearly seven months have passed since Obama nominated Merrick Garland to the seat left open by the death of Justice Antonin Scalia. If Hillary Clinton defeats Donald Trump on Election Day, he should withdraw Garland’s nomination.
There are two possible outcomes on Nov. 8: Either Clinton or Trump will win the presidency. Sure, there are other candidates, but none has a real shot at victory.
(There is a third possible outcome of the election, but it is too frightening to contemplate — a disputed election that lands in front of the Supreme Court, which is evenly divided between justices appointed by Republican and Democratic presidents.)
Suppose, then, that Trump wins. Many Republicans, particularly of the establishment sort, were never thrilled with their party’s nominee, but they held out hope that at least he would be better than Clinton. His Supreme Court nominee might be palatable to conservatives.
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If Trump becomes president-elect, there is zero chance Republican senators will confirm Garland during the lame-duck session. Their line all along — and it was just a line — has been that the next president should get to choose Scalia’s replacement, and that the people should have a say by way of the election. Let President Trump choose.
Suppose, instead, Clinton wins. Here, things get much more interesting. Republicans could stick to their guns and not confirm Garland, giving Clinton a chance to nominate a justice on her first day. Maybe she’d stick with Garland, but maybe not.
Garland is a centrist judge who thrilled few progressives. For example, he tends to fall on the law-and-order side of criminal cases. Indeed, Republicans, at least before he was nominated, identified him as the sort of consensus pick they could get behind.
He also is relatively old for a Supreme Court appointment. At 64, he’s younger than Clinton and Trump, but the average age of the eight current justices at their appointment was 52. Presidents tend to choose judges in their 50s for lifetime appointment to the court so that they could shape jurisprudence for a generation. Progressives who hoped that Obama would follow suit were therefore disappointed.
Progressive disappointment, however, is good reason for Republicans to confirm Garland if Clinton wins. Better the moderate who will serve less time on the court than whomever Clinton might nominate.
Obama should deny them that opportunity. If Republicans have been cravenly political in preventing a confirmation vote, Obama certainly injected his share of political gamesmanship in picking Garland in the first place. He dared Republicans to reject someone they once supported, proving they are obstructionists in an election year.
He’s made his point. Now, if polls are to be believed, Obama should let the next president choose someone younger and more progressive.