Political battles over who will take a seat on the Supreme Court can be traced back to leftist opposition against Robert Bork, whom Reagan nominated, but failed to win the Senate vote. Yet the extent of conservative backlash following Merrick Garland’s Supreme Court nomination by President Obama has been historically unparalleled. Previously, senators have at least agreed to meet with the Supreme Court nominee after the President’s announcement. Thus, Senate Majority Leader Mitch McConnell’s vow on behalf of the GOP to not even consider Garland even before his naming as a nominee is unprecedented. An examination of Garland as a judge may reveal insight as to how his addition to the court would not fit the conservative vision for the balance of the Supreme Court. However, the unrivaled backlash is worrisome, as it may point to how petty politics has invaded the supposedly objective sanctum of the law.
Merrick Garland has had a notable presence on an appeals court for two decades and has received praise from both sides of the aisle. Garland’s judicial record shows that he is very methodical, defers to precedent, and tends to keep his distance from controversial social issues. In regards to more contentious national issues, he has ruled against detainees at Guantánamo being able to use civil courts to challenge their detention and supported the ruling that gave way to super PACs. For smaller scale cases, he has supported employees claiming discrimination, and yet voted against individuals who claim their rights were violated when they had a criminal record. It is concerning that Garland has seemingly avoided landmark cases or precedents involving many controversial social issues, which would be often argued in the Supreme Court.
At the same time, an appeals court cannot be equated to the Supreme Court, so it is likely that we have not seen all that Garland can bring to the bench. For example, his appeals court tends to gravitate towards issues of administrative law and sees very little of the socially controversial cases that would be characteristically presented in the Supreme Court. However, when he has dealt with controversial issues of national importance, Garland has never consistently pleased or frustrated either side of the aisle. For example, in 2010, Garland supported a ruling allowing unlimited contributions to super PACs, but also upheld a ban on campaign contributions from federal contractors in July of this year. Additionally, although Garland rarely dissents, when he does, he is memorable. This was apparent in 2009, when he opposed the barring of a suit against American military contractors by abuse victims from the Abu Ghraib prison.
Perhaps the issue that worries conservatives is how Garland would affect the ideological balance on the bench. Political scientists have concluded that while Garland is to the left of Justice Anthony Kennedy, he might take a pivotal spot as the most conservative liberal. For example, Garland is conservative when it comes to criminal cases yet liberal when it comes to press freedom. Garland’s political ideology cannot be pigeonholed despite his methodical legal analysis, as his rulings show no consistently left-leaning or right-leaning biases. While it cannot be predicted whether Garland will modify his political leanings if he becomes a Supreme Court justice, it is likely that his moderate views would not dampen the conservative vision of the Supreme Court balance. Garland is consistent in his legal analysis, but never truly partisan. Presumably, Obama was trying to minimize conservative backlash by nominating a moderate candidate like Garland. While Obama’s intentions are clear, it is not as apparent what the goal or strategy of Senate Republicans is in rejecting Garland before even allowing an analysis of his moderate-leaning merits.
The GOP’s refusal to even meet Garland has left many people, including some GOP senators, confused and disgruntled. Garland’s moderate ideologies strip such conservative obstructionism of rationale. By rejecting the nominee before knowing who he was or how he would impact the party, the GOP does little to help its image, especially during a tumultuous presidential election cycle in which the Republican frontrunner does not please party leadership. The GOP has much to lose and little to win with this battle over the Supreme Court nomination. A common argument from Republicans has been that the nominee should be chosen by the president-elect, ignoring the fact the President Obama still has nine months remaining in his term. But the way the election cycle is looking now, the GOP would not stand to gain by waiting for a Trump or Clinton presidency. Trump’s radical and “un-Republican” beliefs would most likely result in a contentious Supreme Court nomination, while Clinton’s choice may be more liberal and left-leaning than Garland. By acting so rashly and rejecting Garland without much forethought, the GOP seems to have set itself up for failure. Despite Obama’s attempts to reach across the aisle with a moderate nominee, the GOP has refused to create a constructive dialogue.
Looking beyond this election cycle, a more dangerous implication of this politically charged fiasco is that such petty politics is bound to affect the intended objectivity desired for legal analysis in the highest court of the land. The Supreme Court was intended to be a place where the law is objectively analyzed, although predictably, theoretical neutral principles cannot be unaffected by a judge’s background or personal values. However, at a time when a clearly moderate nominee is rejected, it seems like the goal of ideological balance is at risk looking forward. While political motivations have always affected nominations, the system of checks and balances, as represented by the requisite Senate vote, is intended to strip away such surface-level political tactics to determine whether the nominee’s objective analysis of the law fits the standard necessary for the highest court of the nation. McConnell’s outright rejection of Garland before a thorough examination of his qualifications not only hurts the GOP, but also hurts the legitimacy of the system of checks and balances. His announcement only indicates the American system’s gravitation towards playground politics, in which checks and balances have been used as a way to “get back at” the President, rather than as a method to maintain the political neutrality and ideological balance of the Supreme Court. Supreme Court justices have a lasting impact on the country, due to their long terms and the landmark decisions they make that shape the law of the land. Allowing partisanship to affect the long-lasting influence of the Supreme Court may turn the judicial branch into a reflection of the current Congress, where politically motivated rivalries impede important decision-making. Thus, the unprecedented and illogical nature of this battle over the Supreme Court vacancy will only prove to be more troublesome in the long term.
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