Bench Memos

Law & the Courts

Stay the Course on Garland Nomination

On RedState, Leon H. Wolf briefly argues that now that Donald Trump is the presumptive GOP nominee, “[t]here is absolutely no reason” for Republicans not to confirm the Garland nomination right away. I am, to put it mildly, no admirer of Donald Trump’s, but I completely disagree with Wolf for these reasons:

1. Wolf seems to take as ironclad assumptions both that Hillary Clinton will be the next president and that Republicans will lose control of the Senate. I think that these are both significant possibilities (with the first stronger than the second), but they are certainly not 100% sure things. If you assign a less than 100% probability to either, then Wolf’s assertion of “absolutely no reason” collapses.

2. Wolf worries that a President Clinton will nominate “someone who is radically more leftist [than Garland] and 10-15 years younger.”

a. Ordinary political calculations will deter any president from nominating someone who is overtly “radically more leftist” than Garland. In any event, there is no reason to think that a radical nominee would alter the Court any more than Garland would.

For starters, it’s far from clear that, when push comes to shove, Garland or any supposedly “moderate” Democratic appointee would ever stand up against the justices to his left. When has Justice Breyer ever done so? When has Ginsburg? (Recall that Ginsburg was hailed as a moderate in much the same terms that Garland now is.)

It’s also essential to have in mind that any new justice would make his real impact as part of a coalition of five or more justices. Let’s consider how that plays out.

There’s plenty of room for reasonable disagreement over where on the ideological spectrum to place the current liberal justices. But I think that most folks would agree that Justices Ginsburg, Kagan, and Breyer are fairly closely clustered and that Garland could be expected to situate himself somewhere in that cluster (perhaps roughly right where Breyer is).

If President Obama is able to appoint Garland or if a President Hillary Clinton is able to appoint someone more radical, the effect on the Court is basically the same: The fifth justice needed for a liberal majority would no longer be Justice Kennedy but would instead be someone in the Ginsburg-Kagan-Breyer[-Garland] cluster.

To be sure, you can posit scenarios over the long term in which, after more Clinton appointments, the median justice would be someone to Garland’s left instead of being Garland. For present purposes, I’ll simply note that those scenarios, taken together, fall far short of 100% probability.

b. As for any other nominee being “10-15 years younger” that Garland: That’s unlikely to matter. Garland would most likely be able to time his resignation to keep the seat in liberal hands. So once you hand the Scalia seat over to the Left, don’t expect to ever get it back.

3. I think that the above reasons suffice to refute Wolf. But I’d also add (as Erick Erickson suggests) that Senate Republicans would take a huge pounding from conservatives if they were to fold on the Garland nomination now. Indeed, I think that course of action would virtually guarantee that Republicans would lose the Senate.

4. Implicit in the above, of course, is the assumption that there is a non-zero chance that a President Trump would select a Supreme Court nominee who would cast better votes than a Justice Garland. I see nothing in Wolf’s post to suggest that he disagrees with that assumption.

Bottom line: Yes, things look bad on the presidential front. But that’s no reason to go wobbly on keeping the Scalia seat open through the election.

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