President Obama Nominates Merrick Garland to the Supreme Court. Now What?
Senate Republican leadership says it won’t consider any nomination until after the election
President Obama has nominated Judge Merrick Garland to the U.S. Supreme Court to fill the seat of Justice Antonin Scalia, who died on Feb. 13. Garland sits on the U.S. Court of Appeals for the District of Columbia Circuit, to which he was nominated by President Bill Clinton and confirmed by the Senate in 1997. The constitution requires the president to nominate Supreme Court justices, and the Senate to confirm or reject them. Sen. Mitch McConnell (R-Kentucky) has said he will not hold hearings on any nominee until after the presidential election in November and will not even meet with anyone nominated by President Obama. The stage is set, then, for a long political battle.
David Greenberg, associate professor of history in the School of Arts and Sciences and journalism and media studies in the School of Communication and Information, at Rutgers, has written extensively about the presidency. His most recent book, The Republic of Spin: An Inside History of the American Presidency (Norton 2016), describes how modern presidents have attempted to shape the public’s perception of their policies and images. As the president and the Republican leadership of the Senate gear up for battle, we asked Greenberg to put their confrontation in historical perspective.
Rutgers Today: Let’s talk about the politics first. What’s behind the refusal of the Republicans even to consider – or even meet with – any nominee President Obama sends them? And given that refusal, what’s behind the president’s decision to nominate someone anyway?
Greenberg: I think the Republican calculation is straightforward. They just lost Justice Scalia, the bulwark of a conservative court. To replace him with a liberal justice would shift the balance of the court to the liberals and affect the outcome of cases for years to come, so it’s in their interest to keep a liberal justice off the court. As for the president, it’s in his interest to put liberal justice on the court. He loses nothing by trying. If the nomination fails – or, rather, doesn’t come to a vote – and Hillary Clinton becomes president, Garland might still be confirmed. Some Republicans may vote for him to avoid letting Clinton appoint someone more liberal, especially if Democrats gain Senate seats. And if Donald Trump is in the White House next year, who knows who he might nominate?
Rutgers Today: Will the Republicans stick to their guns, or is there some chance that hearings will be held and an up-or-down vote take place on the floor of the Senate?
Rutgers Today: Is there any historical precedent for the Senate refusing to consider a presidential nominee to the Supreme Court?
Greenberg: Sort of. Back in 1968, President Lyndon Johnson nominated Abe Fortas, who was already an associate justice on the Supreme Court, to be chief justice. A combination of Republicans and conservative southern Democrats filibustered the nomination, and essentially killed it. And Fortas’s intended replacement, Homer Thornberry, therefore never even got considered. But Fortas had a hearing and his nomination went to the full Senate, so the process at least started. And yet there was a lot of criticism at the time, so the fact that there’s precedent for something doesn’t mean it’s a wise thing to do.
Greenberg: He served several years as a federal prosecutor and prosecuted the Oklahoma City bombers and the Unabomber. When President Clinton nominated him, he was confirmed pretty easily, getting several Republican votes, including the votes of some Republican senators who are still in office. As a judge, he’s been well regarded by Republicans and Democrats. He is fairly liberal in his rulings, but I don’t think he’s as far to the left as Clarence Thomas and Sam Alito are to the right.
Media contact: Ken Branson, 848-932-0580; cell 908-797-2590; kbranson@ucm.rutgers.edu