Barack Obama came into office promising to end the Afghanistan and Iraq wars and close the Guantanamo torture camp and none of those things have happened. In fact we are now involved in new wars in Syria and Libya, not to mention Yemen. But there is at least the theoretical possibility that after a president is voted out of office after four or eight years, any bad policies they instituted can be reversed by their successor, though in practice such reversals are not so easy since Congress is also involved.
But there is one issue where reversal is definitely not possible and that is with appointments to the federal judiciary where the appointments are lifetime ones and especially with the Supreme Court. As a result, during every presidential election, one of the most potent arguments to get people to vote for a candidate is to warn them that their opponent will be in a position to nominate people to the Supreme Court. That nomineee, if confirmed, will be there for decades and decide on major issues that have lasting impact on large numbers of people.
This election is no different and the issue has come into even sharper focus with the death of justice Antonin Scalia in February and the blocked nomination of Merrick Garland. The Republicans have been saying that they will not take up his nomination and will wait for the next president in 2017 to nominate someone. Tactically this made sense, at least at the time when this policy was articulated. Almost any one of the 17 candidates who started the race would have been guaranteed to nominate someone who was pro-business and socially regressive. The one exception was Donald Trump because he is so unpredictable but at that time, the party establishment did not take his candidacy seriously.
With him now being the party nominee, you can be sure that there is some re-calculation going on as to what to do. If Trump loses, then they fear that Hillary Clinton will be free to nominate someone even younger and more liberal that Garland. If Trump wins, then it is not clear who he would nominate. It is undoubtedly true that Trump has said that he would nominate someone in the mold of Scalia to replace him but Trump’s words are written in sand and often seem chosen to meet the needs of the moment. He made his promise when he was still seeking to overcome the party establishment’s resistance to his nomination. He even promised back on March 20th that he would soon provide a list of between five and ten judges from which he would select and even mentioned the names of two conservative jurists William Pryor and Diane Sykes. A month later, he said that he would release a list of 10 to 12 names from which he would select.
Trump has not released such a list so far and now that he has the nomination sewn up and is looking towards the general election, it is not clear that doing so would be a good move for him. After all, any list that he provides would alienate some groups. If his list contained all extreme right-wingers, his chances of picking up independents and socially liberal conservatives goes down the tubes. If his list contains a mixture of people, then he will get attacked for not being a genuine conservative. I really don’t see an upside to him releasing such a list now and he may decide to simply ignore the issue.
If Trump does not provide a list of potential nominees at all or produces a list that is not to the liking of Republican senators, what their best option becomes is not clear. Already there are suggestions that Garland, by all accounts someone who is well-respected by his peers and somewhat centrist in his views, may be their best bet and that they should quickly confirm him. This is the position taken by the extreme right wing site RedState. Here is the case they make:
Now that Donald Trump is the presumptive nominee, this is not even a close call. There is absolutely no reason to drag this out any longer. Garland is not a great choice, but he is not a terrible one, either. And more than anything, he is old (for a modern Supreme Court appointment) and will be up for replacement in probably 10 years instead of 20 or 30.
Republicans must know that there is absolutely no chance that we will win the White House in 2016 now. They must also know that we are likely to lose the Senate as well. So the choices, essentially, are to confirm Garland and have another bite at the apple in a decade, or watch as President Clinton nominates someone who is radically more leftist and 10-15 years younger, and we are in no position to stop it.
In fact, if I were the Republicans, my main concern right now would be that Barack Obama would withdraw Garland’s nomination today. The fact that Merrick Garland still exists as an option right now is a gift that should not be squandered.
The calculus has changed – confirm Merrick Garland before it is too late.
Of course, this would require Senate Republicans to abandon their stated high-toned principle that the will of the people as expressed in the general election should hold sway, but that was pretty much bogus anyway.
I dislike this idea of using the names of judges as pawns in election gambits because it is unfair to the judges and makes life awkward for them. If during the campaign candidate X publicly says that judge A is their choice but later candidate Y gets elected president, then A might be rejected not because of unsuitability but merely because of the association with X. This is different from leaking names as trial balloons to gauge reactions because in that case there is deniability all around.
The issue of the Supreme Court is undoubtedly one of importance but it concerns me that it can overshadow every other issue in an election, with people disliking a candidate on pretty much most issues but still supporting them because they are supposedly electable and thus will nominate the right kind of person to the judiciary. I think people should seriously consider something like limiting Supreme Court justices to non-renewable 10-year terms so that this issue gets reduced in significance and more in line with other ones. This would give them the independence they need while also allow the court to get fresh ideas and energy and be more up to date with the times.
UPDATE: Trump has again promised to release the list of names of people from whom he will pick a Supreme Court justice. The list has now gone up to 15 names and he says it will be released before the convention in July.
In an interview with Fox News, Trump said would consider “wonderful, conservative, good, solid, brilliant judges in the form of” the late Justice Antonin Scalia. “I’m going to actually lay them out. I’m going to discuss people … I think before the convention. I want to put 10, 12, 15 names of the type of people that we’d like,” he said.
“From that list, I would choose.”