‘Power Struggle’ Erupts With Nomination of Merrick Garland for U.S. Supreme Court

President Obama insists his nominee deserves confirmation, but pro-life leaders endorse Senate Republicans’ pledge to derail the nomination.

President Barack Obama walks at the White House with Merrick Garland, his nominee for the U.S. Supreme Court, on March 16.
President Barack Obama walks at the White House with Merrick Garland, his nominee for the U.S. Supreme Court, on March 16. (photo: Facebook/The White House)

WASHINGTON — President Barack Obama has named Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit as his nominee to the U.S. Supreme Court, sparking what is expected to be a brutal “power struggle” in Washington amid a polarized election year.

During a March 16 ceremony at the White House, President Obama introduced Judge Garland as “one of America’s sharpest legal minds” and as “someone who brings to his work a spirit of decency, modesty, integrity, evenhandedness and excellence.”

“These qualities and his long commitment to public service have earned him the respect and admiration from leaders from both sides of the aisle,” said the president.

In a pointed reference to Senate Majority Leader Mitch McConnell’s stated refusal to consider any nominee for the high court before the 2016 election, Obama said that Garland was “uniquely prepared to serve immediately” and warned against making the nomination process “an extension of our divided politics.”

Judge Garland, in brief comments following the president’s formal announcement, asserted that “fidelity to the Constitution and the law have been the cornerstone of my professional life” and pledged to continue that path, if his nomination is approved by the Senate.

Judge Garland’s selection is widely viewed as a savvy attempt by the White House to ratchet up the pressure on Senate Republicans to reverse their position and agree to hold hearings on the nomination. While McConnell has remained firm on this issue, senators and activists on both sides of the partisan divide will be pulled into a debate over Garland’s nomination that will heat up during the Senate’s Easter recess, as presidential hopefuls court their party’s base.

“If Merrick Garland can’t get bipartisan support, no one can,” stated Sen. Chuck Schumer, D-N.Y., one of the president’s most powerful allies on the Senate Judiciary Committee.

“He is a thoughtful jurist, with impeccable credentials, who has already garnered overwhelming bipartisan support for a job that requires nearly the exact same criteria as a Supreme Court justice,” added Schumer, introducing talking points that likely will be repeated in the coming weeks and months of the battle.

Schumer and other influential Democrats will argue that Garland is a “moderate,” or even a “centrist,” and thus a suitable successor to Justice Antonin Scalia, who died unexpectedly last month.

A graduate of Harvard Law School, Garland served as deputy assistant attorney general in the criminal division of the Department of Justice during the Clinton administration. Subsequently, he was appointed principal associate deputy attorney general, a role that included supervision of the Oklahoma City bombing case and the case against the “Unabomber.” Then in 1995, President Clinton appointed Garland to the D.C. Circuit.


New York Times: Could Result In ‘Most Liberal’ Court in 50 Years

Yet most commentators agree that Judge Garland’s confirmation will likely shift the balance of power to the high court’s liberal wing, with consequences for future cases dealing with abortion and religious freedom, among other high-profile issues.

“If Judge Garland is confirmed, he could tip the ideological balance to create the most liberal Supreme Court in 50 years,” noted The New York Times in a March 16 story on Garland’s nomination.

Ed Whelan, an authority on the constitution, who blogs at National Review’s Bench Memos, has known the nominee for over 30 years and did not question Garland’s impressive legal credentials.

“Merrick Garland has a high intellect,” said Whelan during a press call following the president’s announcement.

“The only criticism I would offer is that he is a liberal.”

Marilyn Musgrave, vice president for governmental affairs for the Susan B. Anthony List, a group that raises funds for pro-life candidates, told the Register that McConnell was right to block Garland’s nomination, even though no evidence has been unearthed that documents his support for abortion rights.

“We don’t know anything about Judge Garland’s stand on abortion, but we do know that this is the most pro-abortion president that we have ever had,” said Musgrave, who endorsed McConnell’s role in a “power struggle” with the White House.

“President Obama wants someone who will consistently support abortion on demand, and he should not have the opportunity to stack the court with pro-abortion justices.”

Musgrave’s stance was echoed by Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, who took part in a press call.

A veteran of previous Supreme Court nomination battles, Severino noted that abortion cases rarely “come up in the D.C. Circuit,” so it was not surprising that Garland had no clear stand on that issue.

But Severino and her colleagues suggested it was not hard to establish Garland’s views on abortion.

They reminded reporters that Garland had once been considered for a cabinet post in the Obama administration. It was highly unlikely, she argued, that the president would look at a candidate who did not share his views on abortion.

Further, Garland clerked for Justice William Brennan, described by Severino as “the architect of Roe v. Wade jurisprudence.”

The Judicial Crisis Network has already deployed a team of investigators to drill into Garland’s long history as a prosecutor and judge, so Severino may have more information for reporters in the weeks ahead.


Comparatively Moderate

That said, Garland may be more moderate on issues like religious freedom than some of the other jurists that were on Obama’s short list for the court.

For example, another leading candidate, D.C. Circuit Judge Sri Srinivasan, played a troubling role in a landmark religious-freedom case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, in which the justices affirmed the “ministerial exception,” a legal principle that defends the right of church schools to hire leaders and teachers without interference by the courts. 

When the case reached the Supreme Court, Srinivasan — who represented the teacher who sued the Lutheran school — introduced a new legal argument that dismissed the ministerial exception. He argued that a religious school “possess[es] no greater rights of expressive association than a secular school.”

The justices repudiated that argument in a unanimous decision that upheld the ministerial exception.

But the court’s jurisprudence on First Amendment cases is shifting, as church-state battles erupt over controversial laws like the Health and Human Services’ contraceptive mandate.

“What a liberal majority means for religious liberty depends on the issue,” said Douglas Laycock, a leading authority on religious freedom at the University of Virginia’s law school, who noted the court’s evolving response to free-exercise cases over the years.

He pointed out that two recent cases, “Hosanna-Tabor v. EEOC, and Holt v. Hobbs, were … unanimous wins for religious liberty. 

Hobby Lobby split on left-right lines because it involved countervailing issues for the left — women’s health and business regulation and the president’s principal policy initiative,” Laycock told the Register, in a reference to the 2014 religious-freedom decision in which Hobby Lobby, the national craft-store chain, won a landmark decision.

“The cases challenging ‘Little Blaine’ amendments and seeking a free-exercise right to government funds may also be affected, but I don’t think we can assume that Garland or Kagan are no votes on those cases.”

Beyond social issues like abortion and religious freedom, conservative and liberal groups will also be weighing Garland’s rulings that deal with environmental issues, gun rights and criminal justice.

 A 2010 SCOTUSblog assessment of Judge Garland’s record presented the jurist as more centrist than liberal on criminal justice-issues.

“Unlike many other judges, Judge Garland’s position on criminal-law issues is not reflective of a broader ideology,” wrote Tom Goldstein.

“One might expect that a judge with such a record on criminal-law questions would be generally quite conservative across the board. That does not appear to be true, however.”


Liberal Activists Mobilize

As the Senate begins a two-week recess, GOP senators who face re-election will be under fire for backing McConnell’s position.

Liberal activist groups, according to The New York Times, “plan to hit them in their home states and in Washington for failing to undertake what Democrats will describe as a fundamental Senate duty.”

However, GOP senators like Pat Roberts of Kansas have set aside discussions about Garland’s record and focused on a simple message to voters.

“This is not about the nominee; it is about giving the American people and the next president a role in selecting the next Supreme Court justice,” said Roberts.

Yet behind the scenes, during an unpredictable election year, party leaders may be evaluating all their options. Today, reporters asked Ed Whelan to comment on rumors of backchannel discussions between Senate leaders and the White House that might secure a confirmation hearing for Judge Garland if a Democrat is elected president this November.

Whelan responded that there were no restrictions on such discussions, but they would have no immediate bearing on McConnell’s position. But in a previous Bench Memos post today, Whelan stated that Garland was the best of the jurists likely to be considered by Obama (while also stressing that this assessment in no way constituted an endorsement of Garland as a Supreme Court nominee). Such assessments, some observers believe, may lead GOP senators to strike a deal while they can.

Presidential hopefuls like Donald Trump will also be pressed to weigh in on the matter and explain their own plans for filling Justice Scalia’s seat.


Holding Firm

So it looks like a polarized campaign season will enter a new phase of vitriol, but senators such as Mike Lee, R-Utah, say that is just one more reason for putting the nomination process on the back burner.

Said Lee, “In light of the contentious presidential election already well under way, my colleagues and I on the Judiciary Committee have already given our advice and consent on this issue: We will not have any hearings or votes on President Obama’s pick.”


Joan Frawley Desmond is the Register’s senior editor.