After Scalia’s Death, What’s Next?

Supreme Court decisions in favor of conservative viewpoints could soon lean more liberal if Judge Merrick Garland is confirmed, said Kevin Sims, professor of political science at Cedarville.

President Barack Obama nominated Garland as a replacement for Justice Antonin Scalia after Scalia died on Feb. 13. Sims said Garland, current Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, is a living constitutionalist, which means he has a more liberal view of the Constitution. According to the Constitution, Obama needs the “advice and consent” of the Senate to approve the nomination. But the Republican-controlled Senate has not held hearings to formally interview Garland about his qualifications for the Supreme Court.

Sims said Republicans have not made much action on confirming Obama’s nomination because they are hoping a Republican president will nominate someone more conservative.

graphic by Grace Countryman

“The Republicans are hoping that a Republican president will be named in November and (that) will allow that president to name somebody, hoping that if it’s somebody like Ted Cruz – or even Donald Trump – they will get somebody a little more conservative (as the nominee), maybe even a textualist or even an originalist,” he said.

A textualist interprets written law, such as the Constitution, according to its original meaning, and an originalist believes that the meaning of a written law does not change over time.

Mark Smith, professor of political science and director of Cedarville’s Center for Political Studies, said the only way Obama would be able to forgo the Senate’s involvement is through a recess appointment. According to The Recess Appointment Clause in the Constitution, the president can make appointments without the Senate’s approval when Congress is out of session. However, Smith said it is unlikely this will happen.

“If the Senate goes out of session, (Obama) could technically make an appointment without the Senate’s approval,” he said. “The Senate will probably stay in session from now until the president leaves office to keep something like that from happening.”

If the Democrats win the presidency

Sims said Senate Republicans may confirm Garland if it looks like a liberal presidential candidate, such as Hillary Clinton or Bernie Sanders, will win the election. Sims said that although Garland is far from a conservative, he is not a member of the far left.

“I think (Obama) appointed Garland because Garland has that reputation of being a bit more moderate, and I think that’s why (Obama) did it – hoping that he’d win some political points,” he said.

Smith said confirming Garland would be a good idea for Senate Republicans if it looks like the Democrats are going to win.

“My guess is if the Republicans figure they have no chance or very little chance of winning the November election, they will confirm Judge Garland at that point,” Smith said. “He’s probably the most moderate candidate Hillary Clinton would nominate, (and) he’s the most moderate candidate Obama would choose. I would (confirm Garland then) if I were them.”

Moderate or not?

But Marc Clauson, professor of history and law at Cedarville, said Garland may not be as moderate as he seems.

He said Garland has made anti-second amendment decisions and has deferred cases with regulatory agencies (such as the EPA) to the federal government or state governments. Clauson said this makes Garland seem more liberal because modern liberals tend to believe in more government involvement, and Garland has handed these cases over to be decided by the government. Thus, Clauson said he believes Garland will be a typical liberal on the Supreme Court.

Clauson said that not only is it possible that the Republican senators might confirm Garland to avoid a more liberal nominee, but the Democrats may reject him, hoping for a more liberal nominee.

The politics of the situation

Sims said the process of nominating a Supreme Court justice has become very political. For example, he said Obama wanted to call a filibuster on Samuel Alito’s nomination by then-President George W. Bush when Obama was a senator, because Obama wanted a more liberal Supreme Court justice. However, Alito was confirmed.

A filibuster would have postponed the vote until a new president was elected, possibly leading to the nomination of a more liberal justice.

“Should it be that way? Probably not, but it is,” Sims said. “It is what it is. Gosh, I hate that saying, but it works here. It’s just the way it is. It is part of the political process, anymore whether we like it or not, it really is.”

Will Garland be confirmed?

Smith said he believes Garland’s nomination will be confirmed.

“I suspect the Republicans will lose the presidential election in November based on what’s happening right now, so I think (Garland’s) in a somewhat good position,” he said.

But Sims said he doesn’t believe Garland is going to win the nomination because Senate Republicans have been so resistant to even discuss Garland’s nomination to the Supreme Court.

“If I’m inclined to think this through, I’m inclined to think that Garland is not going to get the nomination,” he said. “But I’ll tell (you), this has been such a crazy political season, who knows?”

Jen Taggart is a junior journalism major and off-campus news editor for Cedars. She enjoys writing, listening to music and fueling her chocolate addiction.