A Vacancy on the Court
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The Merrick Garland Nomination

The genealogy of Supreme Court nominees is always an interesting game. Had not President Eisenhower made his "mistake" in appointing William Brennan to the Court in 1956, would Merrick Garland have been nominated by President Obama in 2016? When Garland graduated from Harvard in 1977, he went to clerk for the eminent Circuit Court judge, Henry Friendly. The next year, he accepted the offer to clerk with Justice Brennan, beginning a path of government and judicial service that would bring him to this point in his career. So, here he is, front and center in one of the most controversial settings for a Supreme Court nominee since before the Civil War. On this page, I shall endeavor to provide perspective for the nomination as the process unfolds. The numerous links provide full coverage of the appointment process. Please browse through them.

The Vacancy

The Republican presidential candidates for 2016 were given some bad information in saying that no president had made an appointment in the last year of one's presidency in over 80 years. While one could discount the Kennedy appointment, the nomination having come in November of 1987 with the approval having come in February of 1988, they should surely not forget the monumental blunder of Democratic President Lyndon Johnson in 1968 that handed incoming President Nixon two appointments in his first year in office. Chief Justice Earl Warren sought to retire in 1968, fearing the election of Nixon. President Johnson would then elevate his friend, Associate Justice Abe Fortas into the Chief Justice position and nominate another friend from Texas, Homer Thornberry, to fill the Fortas position. All of this occurred in the summer of 1968, in advance of the November election. The Democrats controlled the Senate, though that majority included some Southern Democrats who were not fans of the Warren Court. The Republicans filibustered the Fortas nomination and the Democrats failed to secure the super-majority needed to cut off debate. Warren agreed to stay on through the 1968-69 term but then the vacancy belonged to Nixon. Fortas resigned in 1969 as well because of ethical concerns involving the acceptance of money in return for providing legal advice to a prominent financier facing legal problems.

In October, 1956, President Eisenhower was faced with the retirement of Sherman Minton and a Senate that was in recess prior to the 1956 election. Eisenhower made a recess appointment of William Brennan, a move that would cause a considerable outcry in today's political environment. When the Senate came back into session in 1957, a newly re-elected Eisenhower sent Brennan's nomination forward for approval, as required by the Constitution, an appointment he later considered a mistake. The Senate now takes extraordinary steps to try to prevent recess appointments of any type by formally staying in session even when they really aren't. A recent Supreme Court case invalidated some Obama recess appointments when the Court ruled that a three-day recess period was not really a recess.

Senators McConnell and Grassley have suggested "the American people . . . should be afforded the opportunity to replace Justice Scalia." Would that we could, but there is no mechanism in the American political system for that to be done. The presidential election will be determined by an electorate (disregarding the electoral college for the moment) with numerous and varied motivations regarding their voting decisions. No president can claim a mandate for any specific policy decision based on his or her being elected. Even less can any particular outcome for the Senate races be deciphered as producing a mandate for any particular course of action.The best way to know what the American people want is to take some good polls that specifically ask the question. At the moment, it appears that a majority want the nomination process to go forward.

The Nominee

With the appointment of Merrick Garland, President Obama has selected perhaps the most venerable from the top ten floated about as potential nominees. At 63 years of age, Garland is the oldest nominee since Lewis Powell, nominated by President Nixon in 1971. The mean age of appointees since President Reagan is 52 years of age. As noted above, Garland clerked for Justice Brennan after graduating from Harvard Law School, and took a job as special assistant to the attorney general in the U.S. Justice Department in 1979 during the Carter administration, serving there two years before going into private practice. He came back to public service as an assistant U.S. attorney in the District of Columbia in 1989 and returned to the U.S. Department of Justice in the Clinton administration as a deputy assistant attorney general in the Criminal Division in 1993. He was appointed by President Clinton to the D.C. Circuit Court of Appeals in 1997, where he has served as the chief judge since 2013.

Garland's reputation is that of a well-respected, well-liked, nonideological jurist who would make an ideal justice were it not for the present political climate. He finished atop his class at Harvard Law, clerked for an eminent justice, has both private practice and Justice Department experience, and now has over 18 years of experience on the most prestigious Circuit Court in the land, the launching pad for other Supreme Court justices. Even with a Senate loathe to even consider the nomination, you'll be able to find a lot of biographical information about Garland on the web as he undergoes scrutiny by the media and advocacy groups eager to paint him in particular ways.

You can find additional information regarding Garland at these sites:

  • Casey C. Sullivan, "Merrick Garland's six most important D.C. Cir. opinions," FindLaw for Legal Professionals (March 16, 2016). Go to the site.

The Setting

The setting for this nomination is the most controversial since the late 1980s, following the rejection of Robert Bork by the Democratic Senate. Presidents wanting to to secure an appointment in such a setting should try to defuse the controversy by nominating someone who should be well-respected, perceived as nonideological, lengthy judicial experience, and sans skeletons in the closet. In the face of Republican Senate leadership opposition to considering any nominee the president might submit, the president has clearly taken the path of playing to public opinion that already favors his right to make a nomination and the Senate's responsibility to consider it. The Republicans, of course, want to delay the nomination in the hope of winning the presidency in the 2016 election while maintaining control of the Senate. It's a gamble. In attempting to frame the vacancy as one which the people should have a say in filling, the Republicans hope to make the Court a major issue in the presidential and Senate campaigns. They run the risk of losing out in those elections, and they conceivably might lose out precisely because the president has nominated someone who otherwise might be the best nominee the Republicans could expect to receive--an older white male without a pronounced ideological predisposition. Obama is essentially saying, either give me the appointment of this eminently qualified individual or run the risk of losing the battle for public opinion on this issue and perhaps, then, even the election.

Scalia Legacy

I leave it to Scalia scholars and other commentators to assess the Scalia legacy, other than to note he was the most important conservative voice on the Court in the modern era. He has indeed brought to the public sphere the jurisprudential notions of textualism and original intent. Moreover, his acerbic written opinions and public presentations made him a particularly newsworthy fit with the modern day penchant for strident political expression. Below are some recommended writings regarding Scalia's legacy.

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Created on February 17, 2016 by gw