When Supreme Court Justice Antonin Scalia died on 13 February, no one quite expected just how bloody the battle to choose his replacement would come. However, given that Scalia was one of the most conservative members of the Supreme Court, and the Republicans hold a majority in both houses of Congress it was, in hindsight, rather predictable.
Nonetheless, it is rather rare for the majority party in Congress to not even consider a nomination made by the sitting president, as was the case when the Republicans in the Senate made clear that they would not be considering Barack Obama’s nomination of Merrick Garland under any circumstances.
On the face of it Garland was a consensus pick. There is little doubt that Obama could have chosen a far more overtly liberal justice in order to fill the vacancy left by Scalia. However, he recognised that with his party in the minority in the Senate, he would have to appease Senate Republicans somewhat. What he didn’t count on however, was that the GOP would have no inclination whatsoever to even consider his nominee.
The rationale of Senate Republicans was that withholding confirmation for Garland was necessary in order to, “protect the will of the American people”.Suggesting that with the Presidential election ongoing, the new President should be the one who is allowed to pick the next justice. However, this was somewhat undermined by the comments of two Republican Senators.Senator Jeff Flake of Arizona suggested that Garland should only be confirmed if Hillary Clinton wins the Presidency, because Garland is less liberal than any nominee Clinton is likely to put forward, suggesting that if Clinton win then, “we ought to approve him quickly.” Senator Orrin Hatch of Utah concurred with Flake’s view. Comments such as this suggest that Senate Republicans were motivated far less by democracy than by partisan concerns regarding the direction of future legislation.
Realistically, the reason for the unwillingness of Senate Republicans to give Garland a confirmation hearing was due to his significance to the future direction of the court.
Following the death of Scalia, the court is locked 4–4 between Democratic and Republican appointees. If Garland were to be confirmed then there would be majority of Democratic appointees for the first time since 1969. This has serious significance for the direction of future legislation.
However, Merrick Garland is just the tip of the iceberg when it comes to how significant this Presidential election is to the future make-up of the Supreme Court.
It has been suggested that the next President might be able to appoint up to four Supreme Court justices, with Donald Trump even suggesting that they might be able to appoint five if Garland hasn’t been confirmed prior to the inauguration.
The reason for this is that many of the Supreme Court justices are now getting to the point where they might consider retirement. The left-wing justice Ruth Bader Ginsburg is now 83, whilst centre-left justice Stephen Breyer is 78. If Clinton is elected come November, then expect these two to retire. Likewise, the relatively centrist Anthony Kennedy is now 80, and surely nearing the end of his career.
Each of the last four Presidents has had the opportunity to appoint two Supreme Court Justices. This means that already it is looking as though the next President is going to have a outsize influence on the makeup of the court, meaning a sizeable influence on policy for a generation.
Earlier in this election, Donald Trump took the slightly unusual step of releasing a list of prospective Supreme Court justices, who he would look to appoint were he elected in November. Unsurprisingly, most of the list had impeccable conservative credentials. Trump’s reasoning for this is that he wants to appeal to Republicans who want to protect recent Supreme Court decisions such as Citizens United which prohibits the government from restricting the election spending of corporations; and District of Columbia v. Heller which further protected the right to bear arms. Whilst the also wants to attract voters who are keen to see the rolling back of Roe v. Wade and Obamacare. Conversely, Hillary Clinton and the Democrats are on the complete opposite of this debate.
Both candidates clearly understand the importance of this election in terms of the direction of legislation in the future. Given that Supreme Court Justices are given a lifetime appointment to the court, these decisions will affect the direction of legislation well beyond the presidencies of either Trump or Clinton.
This only serves to make this election even stranger: the fact that the two most unpopular presidential candidates in history, will have perhaps more impact on legislation than any of their predecessors.