JURIST Guest Columnists David Frakt discusses President Obama’s recent Supreme Court nomination…

Yesterday, President Obama nominated Judge Merrick Garland to serve on the US Supreme Court. Within minutes, the Republicans in the Senate confirmed, as they had previously made clear, that they will refuse to even meet with Judge Garland, much less allow a confirmation vote for him.

The Republicans claimed rationale for refusing to even consider President Obama’s nominee is that they want to “let the people decide” who should appoint Justice Scalia’s replacement in the next Presidential election. The Republicans have lately refined their message to assert that by declining to allow a vote that they are exercising their Constitutional right to advise and consent, as opposed to completely abdicating their constitutional responsibility. The actions of the Senate Republicans are, in my view, completely illegitimate. But, legitimate or not, they are clearly determined to deny President Obama the opportunity to fill this vacancy. Republicans know that replacing Justice Scalia with even a moderately liberal Justice will dramatically alter the composition of the court, and they simply are not willing to allow President Obama the chance to shape the legal landscape potentially for years to come by consenting to his nominee. At this point, the only real value of the open seat on the Supreme Court to the President and his party is political. The behavior of the Senate Republicans in abdicating their Constitutional responsibility in this unprecedented fashion provides further evidence of the dysfunction and obstructionism of the Republican majority, providing an argument for returning the Senate to the Democrats; the Democratic Presidential candidate may also benefit somewhat by raising the specter of the Republican Presidential candidate getting the opportunity to appoint another conservative to the court. This frightening prospect may well serve as a useful incentive to get out the Democratic vote. But leaving the seat unfilled could just as easily benefit the Republican nominee – keeping the Scalia seat in conservative hands is undoubtedly a powerful rallying cry on the right; indeed, this theme has already become a regular feature in Republican Presidential candidate stump speeches.

Meanwhile, the court is faced with several important decisions that they must make with only eight members, which is likely to lead to numerous 4-4 tie votes on important issues. This undesirable state of affairs is likely to last well into 2017. The precedent being set by the Senate Republicans virtually ensures that the confirmation process for future Supreme Court nominations, especially for this vacancy, will be a bitter and lengthy partisan battle. Even if the next President nominates someone to fill the vacancy on his or her first day in office, it could take months to get the candidate confirmed.

What if Judge Garland were to promise, if confirmed, to offer his or her resignation to the next President, whomever it might be, as soon as he or she is inaugurated, effective upon the confirmation of a replacement nominee? The next President could decline or accept the resignation, as he or she saw fit. If the resignation were accepted, Judge Garland would simply remain on the court until his or her replacement was confirmed, then return to his seat on the DC Circuit Court of Appeals (a vacancy that is very unlikely to be filled during the last few months of President Obama’s term anyway). This would ensure that the court would not have to operate without a full complement of nine justices. If this offer managed to break the political stalemate in the Senate, the worse case scenario for Judge Garland would be a brief stint on the Supreme Court, followed by a return to his lifetime position as a Federal Appellate Judge. Making such an offer would also show Judge Garland to be a selfless jurist, who is above politics and willing to put the good of the country and the judiciary before his personal ambitions.

Although offering such a compromise would, in one sense, be rewarding very bad behavior by the Republican Senators, it does offer benefits to Democrats as well. If this offer were enough to persuade Republican Senators to confirm him, it would presumably enhance the likelihood of the Obama Administration’s preferred outcomes on the cases that Justice Garland would sit on over the next year. Such a compromise would also give President Obama at least some chance to cement his legacy by exercising the right to make an appointment to the Court that he has earned by winning two Presidential elections, an opportunity that he is currently being denied. At the same time, this compromise would allow Republicans to get exactly what they say they want, which is for the 2016 Presidential election to determine which party will get to choose Justice Scalia’s life-appointed replacement. This compromise might also be appealing to Republicans as a hedge against the strong possibility of the Democratic nominee winning the Presidency, in which case President Clinton or Sanders might well nominate someone far younger and more liberal than Justice Garland. Since a Democratic President would be unlikely to accept the offered resignation, confirming Judge Garland would preclude ending up with a far more objectionable nominee. And if the Republicans refused this eminently reasonable compromise, it would provide even greater political value to Democrats, not only in the Presidential race, but perhaps even in crucial Senate races as well, as Republicans could be portrayed not only as the “party of no,” but also as hypocrites, who won’t even accept a deal that gives them exactly what they claim to be seeking.

David Frakt is a legal scholar and former law professor, now in private practice in Orlando, Florida

Suggested Citation: David Frakt, How Judge Garland Can Get to the Supreme Court, JURIST – Professional Commentary, Mar. 17, 2016, http://jurist.org/hotline/2016/03/david-frakt-supreme-court.php.