Of the millions of Americans on edge awaiting the results of Tuesday’s presidential election, one man is likely among their ranks: Merrick Garland.
It was exactly 237 days ago that President Obama nominated the 63-year-old U.S. Court of Appeals judge to fulfill a vacancy on the nation’s highest bench. Senate Republicans immediately moved to block a hearing, let alone allow a vote.
Obama, speaking from the Rose Garden in March, warned that such politicking could irreparably damage an institution that has decided the law of the land for nearly 230 years.
“The reputation of the Supreme Court will inevitably suffer. Faith in our justice system will inevitably suffer. Our democracy will ultimately suffer, as well,” Obama said.
In the months that followed, Republicans didn’t budge. Garland’s nomination remains dormant, and, so far, the Court has sat through most of its fall term short a member.
Now, with just hours left before Republican candidate Donald J. Trump or Democratic candidate Hillary Clinton is declared the next U.S. president, the Supreme Court finds its fate inextricably linked to the election results.
The next president may not only fill the seat left open by this year’s unexpected death of Justice Antonin Scalia, but, with three justices older than 75, he or she is likely to also make more nominations in the years to come. And with the Supreme Court sure to hear cases during the next presidential administration that have enormous implications for the America people — from immigration to transgender rights to the Second Amendment — the political controversy surrounding the judicial branch could persist for years to come.
Court at a crossroads
How did the Supreme Court — the one branch of government, with its lifetime tenures, intended to remain a neutral body — become so politicized?
Tony Mauro, a journalist who has covered the court for 36 years, says the trend began nearly two decades ago, as nominations to the bench became increasingly partisan. The trend reached its peak under President George W. Bush and then Obama, both men abandoning merit-based nominations and preferring instead to pick justices with shared ideological views, he said.
Republicans’ refusal since last spring to grant Garland a hearing has only upped the ante.
“There have been politicized nominations in the past, but nothing this contentious and this long-lasting,” said Mauro, now the Supreme Court correspondent for the National Law Journal.
Neither Clinton or Trump have indicated they would change course in their nominations if elected.
In the final presidential debate, both candidates laid out partisan “litmus tests” for potential Supreme Court nominees. A Clinton nominee would have to support overturning the Court’s 2010 decision in Citizens United, which lifted campaign finance restrictions. A Trump nominee would have to support overturning Roe v. Wade, the Court’s 1973 ruling protecting women’s abortion rights.
Lyle Denniston, judicial expert with the nonpartisan National Constitution Center, says the presidential candidates’ proposals are ultimately a disservice to American democracy, blurring the lines between supposedly independent branches of government.
“That continues the impression that the court is an extension of policies of the White House. It’s a danger to the court and its future,” he said.
Denniston, who has covered the Supreme Court as a reporter for 58 years, has witnessed many controversial nominations — some succeeded; some failed. The difference, he says, is that justices now come to court believing they have a duty to pursue a philosophical agenda in line with the presidents who nominated them.
“We have ruined the whole confirmation process by making it agenda-driven,” he said. “It won’t change until the president has the courage to make appointments based entirely on merit.”
Republicans not backing down
If Clinton wins Tuesday’s election — and especially if Republicans lose control of the Senate — lawmakers could move forward with a lame-duck nomination, finally giving Garland, widely regarded as a centrist, a hearing before Obama leaves office.
“That would be the logical thing to do, but I don’t think logic has a lot to do with it,” Mauro said.
Early signs indicate Mauro’s skepticism is well-founded and that a partisan showdown could be on the horizon.
Just last month, former Republican presidential candidate Sen. John McCain vowed to continue blocking all Supreme Court nominations during a Clinton presidency. If McCain gains the support of his party, experts say a Republican-led blockade would represent a new era of political obstructionism, one that could have a snowball effect on the entire federal judiciary.
“There’s no reason why you couldn’t then block all federal judges,” said Paul Schiff Berman, law professor at The George Washington University. “It strikes me that if you think the rule of law is important to the American backbone of democracy, then that’s a real crisis.”
The longer the bench has an empty seat, the more likely the justices will come to split, 4-4 decisions. When this happens, lower court rulings stand, allowing for courts in different states to continue interpreting the law in different ways.
“It leads to a lack of uniformity, precisely what the Supreme Court is responsible for solving,” Berman said.
An eight-member court will also be less likely take up cases that could have sweeping ramifications, another example of the court’s power being diluted, experts say.
“If the Supreme Court is just handing down little baby-step kinds of decisions, it’s not really fulfilling its role,” Mauro said.
The public, for its part, may be reacting sympathetically to the court as it continues to do its job despite being understaffed.
Although public opinion of the Supreme Court hit a 30-year low in 2015, an August 2016 Pew Center Research poll shows 60 percent of Americans now have a favorable view of the judiciary.
“This has been the strangest campaign I’ve ever seen,” Mauro said, relaying an observation many Americans would agree with. “We’ll just have to hope that the anger between parties will calm down, and people will realize they have to keep functioning.”
Though the future Mauro speaks of is uncertain, one thing can be guaranteed.
As the American public settles in to watch Tuesday’s election results, the eight justices of the Supreme Court—and at least one potential bench mate — will sure to be watching, too.
Update:
Following Trump’s victory last night, the Supreme Court’s future is now in the hands of a Republican presidency with Republican majorities in the House and Senate.
Supreme Court experts are stating the obvious: Merrick Garland will not be the newest justice to the nation’s highest court. They are also helping to paint a picture of what the court could look like in the years to come:
All eyes will now be on the court’s oldest members, Kennedy and Ginsburg. Replacing Kennedy with a more stalwart conservative would immediately impact the court’s dynamics. He has given no indication about how long he intends to serve on the court.
Ginsburg has said she will serve as long as she is up to the job. She would likely be loath to allow Trump to pick her successor; she caused an uproar this summer when in media interviews she called him a “faker” and said she feared for the court and the country if he were elected.
Trump’s effect on the electorate is now clear. But, as The Washington Post’s Robert Barnes writes,
“The long-term question will be Trump’s ultimate impact on the court’s membership, and whether he gets the chance to do more than choose the successor to Justice Antonin Scalia.”
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