The single most important phrase that changed the politics of Supreme Court nominations was Senator Edward Kennedy’s famous and shameful denunciation of “Robert Bork’s America,” with its back alley abortions, segregated lunch counters, and rogue police. From that point on, Supreme Court nominees of either party, and even potential nominees, have risked being attacked in a similar manner. The nomination process of Clarence Thomas was, of course, quite ugly—and there were major tussles during the deliberations over John Roberts and Samuel Alito (who then Senator Obama wanted to filibuster). Now, the Republican opposition is coalescing against Judge Merrick Garland, the Chief Judge of the Court of Appeals for the District of Columbia, who at age 63 is Barack Obama’s nominee to the Supreme Court.
The resistance to Garland may prove to be misguided from a political perspective, even if permissible as a constitutional matter. But the Republicans have just doubled down in their game of political chicken by announcing that they will not give Garland a hearing either before or after the election. Whether they have enough ammunition to succeed politically is a complex question.
To help cut through the morass, it is useful, I think, to separate the politics from the man. The opposition to Garland has nothing to do with Garland himself, who is a distinguished public servant and an excellent federal judge. If he were filling a seat vacated by a liberal Democrat, there would not be much fuss. But this appointment involves a shift in control on the Supreme Court. Republicans fear that even the most reasonable liberal Democrat will tip the balance of the Court away from the conservative wing. If Hillary Clinton becomes president, she will doubtless make two or three appointments to the Court, at which point the Democrats will have a complete ideological lock on the Court for at least a generation.
That shift in control will matter most on hot-button issues. One recent example is Friedrichs v. California Teachers Association.Virtually every observer of the oral argument believed that a five-four vote was certain, meaning the Court would outlaw the agency shop for public unions on First Amendment grounds. That decision is now likely to be decided four-four, so that the perfunctory Ninth Circuit decision upholding the agency shop arrangement will prevail.
The same uncertainty exists in United States v. Texas, which is about the reach of executive power in immigration cases. There is a sharp division of opinion between the left and right on that issue. It’s a similar situation for Zubik v. Burwell, where the Little Sisters of the Poor are contesting under the Religious Freedom Restoration Act (RFRA) a requirement by the Department of Health and Human Services that they facilitate insurance coverage for contraceptive services that are against their sincere and deeply held religious beliefs. In the related case of Hobby Lobby v. Burwell, a five-four majority held, over fierce opposition, that under the RFRA, a private corporation could not be required to provide health insurance policies that covered payment for contraceptive methods that violated the religious beliefs of the individuals who owned and controlled Hobby Lobby. Zubik is surely closer to the line, and there is little doubt in anyone’s mind that a future Justice Garland would vote to sustain that regulation, given his general deference to administrative regulations. Similarly, it is likely that Garland would vote to overturnCitizen’s United v. Federal Election Commission, decided in 2010, which featured a powerful Scalia concurrence, attacking, let us not forget, the scope of the bipartisan McCain-Feingold legislation on First Amendment grounds.
The future is sure to hold key decisions on abortion, affirmative action, campaign financing, gun rights, unions, federal power to regulate under the commerce clause, and judicial review of administrative agencies. The betting by everyone is that a Justice Garland would line up solidly beside his four liberal colleagues on this set of issues. Ideologically, he is closer to Justices Kagan and Breyer, as opposed to Justices Ginsberg and Sotomayor, but Republicans are not concerned about these fine-spun differences. They fear the constitutional reorientation that will surely arise if Garland replaces the late Justice Scalia.
But some of the attacks against Garland have veered into the realm of hyperbole. Many conservatives do not seem to realize that some of the problems of modern constitutional law are attributable to the work of Republican judges. One example of a misguided attack against Judge Garland comes from a recent Wall Street Journal op-ed by Juanita Duggan, the head of the National Federation for Independent Businesses. She announces in the piece that the NFIB is getting off the sidelines to strongly oppose Garland’s elevation to the Supreme Court. Her chief complaint against Garland is his deference to administrative authority, especially to a pro-labor National Labor Relations Board. By the same token, though, Garland’s approach on this matter is all too mainstream. Administrative deference was also championed, after all, by Scalia.
Duggan takes aim at Garland’s opinion in Rancho Viejo, LLC. v. Norton. In that case, the Department of Interior prevented Rancho Viejo from completing an extensive real estate development because its construction could compromise the habitat of the Arroyo Southwestern Toad, which lies entirely within one state. Garland upheld the Department of Interior’s position. But, Duggan argues, this is not a matter for Congress to decide. How does the Department of Interior’s action, she wonders, fall under Congress’ power to regulate commerce among the several states?
As a matter of first principle, Duggan asks the right question, as this looks to be a local matter. But as a matter of current law, Garland was surely correct, and Duggan sadly misinformed. The first hint that something is amiss is that the Secretary of Interior was a rock-ribbed Republican, Gale Norton. The second key point is that Garland’s decision relied extensively on the 1995 Supreme Court decision in United States v. Lopez, which established the broad reach of the contemporary commerce power. But, again, remember that Chief Justice Rehnquist. wrote the expansive decision that, in the course of striking down the Gun-Free School Zones Act of 1990, went out of its way to affirm a foundational constitutional decision of the New Deal, Wickard v. Filburn(1942) on which Rancho Viejo rests. Even the conservative Douglas Ginsburg concurred in Garland opinions, while doubting that under Lopez Congress could reach the lone hiker as well as the large commercial developer. But if that is the bone of contention, the war to constrain Congressional power has already been lost, whether or not Lopez is overruled.
At this point, the entire picture is muddier than one might hope given that Republican legislators and Republican justices have contributed much to the parlous state of American constitutional law. But, in general, the Democratic justices have been consistently more off base, which is why Republicans have been so intransigent about Garland. Suppose the Republicans hold firm, and the Democrats win the presidency. At this point, the Republicans may bite their lips and vote to confirm Judge Garland, at which point they have lost nothing but time. They take the risk that President Obama would pull Garland out and nominate someone further to the left. But given his oft-repeated claim that he chose the most qualified candidate, it is not likely that President Obama would make that reversal.
The real loss to the Republicans lies elsewhere: that the public will see the Senate’s refusal to hold hearings as mean-spirited political opportunism or, worse, as an abnegation of their alleged constitutional duty to consider any nominee that the President puts forward.
On the political issue, the Republican renewed refusal to hold a hearing could cost them dearly at the polls. Granting a hearing, allowing Garland to speak, and then voting him down could easily be damaging if he makes a favorable public impression, which seems likely. Worse still, as George Will asks, is it really part of the game plan of any sane Republican to preserve the right to designate a Supreme Court nominee to the erratic Donald Trump or the liberal Hillary Clinton? The Republicans take a very substantial risk that hanging tough on the Garland nomination could cost them both the Presidency and control of the Senate, even if by some miracle they are able to deny the clueless Donald Trump the presidential nomination.
Politics aside, it is, however, quite another story for the Democrats to accuse the Republicans of breaching their constitutional duty. The applicable provision of the Constitution reads:
The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . .
This provision sets out no distinctive procedure for the confirmation of Supreme Court judges. The word “shall” imposes a duty on the President to nominate, but there is no parallel duty on the Senate. Historically, the Senate has routinely refused to consider nominees for all sorts of high offices. Indeed, early on the Democrats routinely refused to give hearings to qualified Republican nominees for the narrowest of political reasons.
There can be an endless debate as to how the Senate ought to behave, but one of the tragic legacies of the Bork confirmation hearings is a wall of distrust has killed all forms of civility between the parties. The Republicans know that if they cave today, the Democrats will, if it suits them, not reciprocate tomorrow. Unilateral disarmament on confirmation hearings is not an appealing option for the Republicans. Nor indeed is any other alternative. The stakes in this latest partisan tussle are high, and the one clear loser is the public at large as our public institutions continue to deteriorate.
*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.