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What's Obama's Supreme Court strategy?

President Obama has nominated Judge Merrick B. Garland, a respected and accomplished federal appellate judge, to replace the late Justice Antonin Scalia on the Supreme Court of the United States. What's next?

In one sense, the nomination of Judge Garland is not at all surprising. His name has been on various "short lists" for previous Supreme Court vacancies. He has a "paper trail" and his record and abilities are well known. Republicans and Democrats alike have spoken highly of him. Certainly, he is "qualified" to serve ably on the high court.

President Barack Obama (R) and Vice President Joe Biden (L) stands with Judge Merrick B. Garland (R), while nominating him to the US Supreme Court, in the Rose Garden at the White House
Chip Somodevilla | Getty Images
President Barack Obama (R) and Vice President Joe Biden (L) stands with Judge Merrick B. Garland (R), while nominating him to the US Supreme Court, in the Rose Garden at the White House

However, he is being nominated to replace someone who, for nearly 30 years, was an influential, even game-changing judicial conservative and it is beyond doubt that, in more than a few areas, his confirmation to the bench would change the high court's philosophical balance as well as its rulings and doctrines in contested and controversial areas. This is why Republicans in the Senate have said that they intend to decline to confirm any nominee — even a nominee who is, like Garland, well qualified to fill the position — until after the upcoming elections.

"Some have suggested that the Constitution somehow requires or legally obligates the Senate to hold hearings and vote on Judge Garland's nomination. It clearly does not."

Some have suggested that the Constitution somehow requires or legally obligates the Senate to hold hearings and vote on Judge Garland's nomination. It clearly does not. The president has the power and the right, for his entire presidency, to nominate candidates to fill judicial vacancies; the Senate has the power, in turn, to delay or decline hearings and votes. The federal government created by our Constitution has three different branches, which check and balance each other in various ways. When the branches disagree, more often than not the disagreements are worked out politically, rather than legally.

That is what will happen here. The president will make his case to the American people that the Senate should confirm his nominee; Republicans will, in turn, argue that whether the court should be, potentially, dramatically transformed should be a question for the voters in November.

The court has often operated with fewer than nine members many times in our history and, more than a few times, presidents and the Congress have jockeyed, struggled, and contested over vacancies and confirmations. It is understandable that many regret the politicization of the court's membership but it is also understandable, given the role that the court now plays in our democracy, that many people care, a lot, about the court. There can be little doubt that, if the president were a Republican and the Senate were controlled by Democrats, things would proceed similarly to the way they are now.

Turning to Judge Garland in particular, several points are noteworthy. First, there is the fact that, at 63, he is the oldest nominee to the court in 45 years. In recent decades, especially since the controversial treatment of one of President Reagan's nominees, Robert Bork, presidents of both parties have sought to increase the impact of their Supreme Court picks by nominating relatively young jurists. A judge who joins the court at, say, age 50 (as Justice Elena Kagan did) has the potential to shape the court's work for many years. By nominating Judge Garland instead of, for example, Judge Sri Srinivasan or Judge Ketanji Brown Jackson, the president appears to be taking a different path. It could be, in fact, that the president expects the Senate to stand by its resolution not to confirm Justice Scalia's replacement before the election, and so he has decided to, in effect, save some of the younger candidates on his short list for the possibility of a Hillary Clinton presidency and then let her make the nomination.

It's also noteworthy that, like every Supreme Court nominee for the last 25 years, Judge Garland is not a Protestant. In fact, if Judge Garland were confirmed to the court, it would continue to lack — as it has since Justice Stevens stepped down in 2010 — even a single Protestant member. With President Obama's first two nominations, in contrast, he appeared to be focused at least in part on diversifying the Court's membership along various lines. One of the other much-discussed potential candidates, Judge Srinivasan, would have been the Court's first Asian-American and first Hindu justice.

Finally, and notwithstanding the suggestions from various quarters that he draw from a broader pool of potential justices, in terms of education and professional experience, Judge Garland would, if confirmed, add to the court yet another federal appellate judge who graduated from an Ivy League law school. It seems that although the court could be in for a dramatic change, some things will stay the same.


Commentary by Richard Garnett, a constitutional law professor at the University of Notre Dame. He is also the author of, "Two There Are: Understanding the Separation of Church and State." He was a clerk for the late Chief Justice William Rehnquist during the court's 1996 term. Follow him on Twitter @RickGarnett.

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