Carol Nackenoff, Richter Professor of Political Science at Swarthmore College, took a break from her sabbatical to answer some questions raised by the nomination of Judge Merrick Garland, who will apparently not receive a hearing before the U.S. Senate during this legislative term.
Q. Is there a precedent for this treatment of someone like Judge Garland, who is acclaimed as a great jurist but opposed for how he came to be nominated?
A. I can’t immediately think of one. President Lyndon Johnson ran afoul in his attempt to elevate Abe Fortas to Chief Justice, who was well regarded as a judge and was already on the court. He was a good jurist, but had [ethical] issues, and failed at his confirmation. The most recent lengthy vacancy on the Supreme Court was 391 days, when President Nixon tried both Haynesworth and Carswell (both of whom were rejected) after Fortas resigned in May 1969. The seat finally went to Harry Blackmun. Another long vacancy was filled by Justice Anthony Kennedy, 237 days after Lewis Powell’s retirement. President Reagan’s first nominee, Judge Robert Bork, was probably denied for his strong ideological positions more than his quality of mind, but no one said that you can’t take those kinds of factors into account. My sense, however, is that Judge Garland is clearly no Judge Bork, because he’s very centrist. Bork didn’t even want to acknowledge the role of precedent in decision-making, something that even the late Justice Scalia was willing to acknowledge — which is why he called himself a “fainthearted originalist.” Scalia did leave room for established precedent quite often.
Q: Will conservatives object to Judge Garland on ideological grounds?
A. I wouldn’t say Judge Garland is ideological at all. He seems to be a judge who avoids reaching beyond the case at hand. Sometimes when he follows Supreme Court precedent, we don’t know if that’s a position he agrees with or whether he simply thinks that’s the kind of decision the court has commanded him to reach, and I think there are cases like that in the Washington, D.C., circuit [where he is chief judge of the U.S. Court of Appeals].
Q: How do you think this will play out?
A: If the Senate persists in failing to hold hearings, and if a Democrat is elected, I suspect that the President will withdraw the nomination or ask Merrick Garland to withdraw himself from consideration, painful though that would be to him. I think the logic would be that the new president at that point should probably get to pick his/her own nominee. It’s possible, though, that the Senate would want to hold hearings for Judge Garland in a situation like that because they think they might otherwise get a “worse” nominee.
Q. Could Judge Garland be nominated again by the next President?
A. Yes, but I don’t think he would be. Despite his centrism, the fact that Senator Hatch and a good number of Republicans supported him when he was put on District Court by President Clinton… if Republicans hold onto the Senate, they may refuse to put any Hillary nominee on the court if she wins. They can simply continue to do what they’re doing.
Q: What happens then? Has the Supreme Court functioned without all nine justices?
A: Oh, sure. Only in 1869 did it become a nine member court permanently, and there’s no law that says it has to be a nine member court. But it makes its workload more difficult… and so many decisions have been going down 5-4 [before Justice Scalia’s death], which makes the eight person court look all the more political. They would need to be strategic about what cases they agree put on the docket. Actuarially, I would have a hard time imagining Justice Ruth Bader Ginsburg going another four years, but who knows? Justice Breyer is getting up there too. But there have been plenty of people who stayed on the court through their 80’s.
Q: What are you doing on your sabbatical?
A: I’m working on a book manuscript, very slowly. It examines statebuilding, reform movements, and women’s organizing from 1875 to 1925. Every chapter is on a different theme. I’m off to a conference today, with another coming up, and I’ve also done vacation travel to Cambodia, Laos, and Vietnam.