“We didn’t see this kind of reticence when it came to justices Kagan or Sotomayor, but we are seeing it here,” Smith said. “It isn’t because of Judge Garland’s expertise. It’s because of the unique nature of what’s happening right now.”
Smith said Senate Republicans would likely be opposed to any Obama nominee because they don’t want to approve anyone on the Supreme Court who might advance the president’s agenda.
“Conservatives in the Senate desperately want to hang on to that (Supreme Court) seat as a representation of Justice Scalia,” Smith said. “In their minds, if President Obama is able to fill that appointment right now, then the balance on the court could shift (away from a conservative-leaning court), and it could shift for a number of years. I think that’s what’s driving the Republicans to oppose him as much as anything else.”
Still, Garland, who has a relatively conservative record on criminal justice and meets President Obama’s goal of nominating a “consensus candidate” to the Supreme Court, may ultimately be the best option for those in Congress who are likely to oppose him now, said Richard Saphire, a retired law school professor at University of Dayton.
“If the Republicans lose the presidential election, whether it’s to Hillary Clinton or Bernie Sanders, one might think that they would have an incentive to reconsider their decision not to entertain (President Obama’s) nomination,” according to Saphire, who said Clinton and Sanders are both likely to nominate Supreme Court justices much more liberal than Garland.
And Republicans will have plenty of time to assess the potential liability of not considering Garland, the 63-year-old chief judge for the United States Court of Appeals for the District of Columbia Circuit.
“The nomination is good until the president leaves office, unless he withdraws the nomination or the candidate withdraws,” Saphire said. “So you’ve got November, December and part of January in which the Republicans might do damage assessment.”
If confirmed, Garland would be expected to align with the more liberal members, but he is not viewed as down-the-line liberal. Particularly on criminal defense and national security cases, he’s earned a reputation as centrist, and one of the few Democratic-appointed judges Republicans might have a fast-tracked to confirmation — under other circumstances.
He would replace ultra-conservative Justice Scalia, who died last month, leaving behind a bitter election-year fight over the future of the court.
Garland was confirmed to the D.C. Circuit in 1997 with backing from a majority in both parties, including seven current Republicans senators.
Sen. Sen. Sherrod Brown, D-OH, described Garland as an “unquestionably qualified nominee.,” and urged his Republican counterparts to act on the president’s choice.
“I expect my colleagues to put politics aside, do the job we were elected to do and give Judge Garland full and fair consideration,” Brown said. “Anything less undermines our democracy.”
But Ohio Republican Sen. Rob Portman said the issue is about “the principle, not the person.”
“We are in the midst of a highly-charged presidential election that is less than eight months away, and this lifetime appointment could reshape the Supreme Court for generations,” Portman said. “I believe that awaiting the result of a democratic election, rather than having a nomination fight in this partisan election-year environment, will give the nominee more legitimacy and better preserve the Court’s credibility as an institution.”
While campaigning in Pennsylvania Wednesday, Ohio Gov. John Kasich said Obama shouldn’t have made a nomination to the court.
“Look, the president has failed in this,” he said. “You cannot stiff the legislative body that you have to work with. You just can’t do that. He has had no relationship with them.”
He accused the president of creating more division by nominating someone so late in his presidency. “Now we have more fight, more fight, more fight,” he said.
Those on both sides of the argument have cited a clause in the U.S. Constitution that says 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.”
But there is no legal standard or precedent that would force the Senate to act, despite the presidential directive, said Charles Hallinan, a UD law professor.
“Certainly over the last several decades, the custom has become to hold hearings (with Supreme Court nominees), but there is no legally enforceable way to make that happen,” Hallinan said. “As long as the majority of the Senate holds firm (withholding their advice and consent), they’re in the driver’s seat. Nobody can force them to have hearings and consider the nominee.”