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Jack Goldsmith: Trump Will Become the Face of Justice Scalia’s Jurisprudence

6 minute read
Goldsmith is a Harvard Law School professor and a senior fellow at the Hoover Institution; he was an Assistant Attorney General in the George W. Bush Administration.

One unmistakable sign of the stellar reputation of Merrick Garland, President Obama’s Supreme Court nominee, is the praise he received from the President’s most conservative critics.

Ed Whelan, an influential opponent of President Obama’s judicial nominees, expressed “very high regard” for Garland, whose “intellect and decency” he admires. His National Review colleague Andrew McCarthy, another sharp critic of the President’s judicial choices, thinks “very highly” of Garland and says “there is no doubting Garland’s intellect and integrity.” Both men, however, oppose Garland and urge the Senate not to consider the nomination. And Senate majority leader Mitch McConnell announced that Garland would not in fact receive a hearing.

“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction,” McConnell explained.

Staunch Republican opposition to the widely admired Garland might seem puzzling. Garland has immaculate credentials: magna cum laude from Harvard Law School, prestigious clerkships, corporate litigation experience and a very distinguished career as a Justice Department lawyer before joining the second most important court in the country (after the Supreme Court), where he earned a reputation as a careful, consensus-building jurist who wrote narrow lawyerly opinions and avoided ideological firefights. On some legal issues—most notably those involving criminal procedure and the “war on terrorism”—Garland wrote or joined opinions no more progressive, and in some respects more conservative, than Justice Scalia.

Another sign of Garland’s relative sobriety and restraint is the reaction to the nomination by some of President Obama’s progressive supporters. NOW President Terry O’Neill described Garland as an “unfortunate” choice and a “real nowhere man.” Democracy for America, Demand Progress, and Slate’s progressive law correspondent said Garland was a “disappointing” nominee.

And yet despite these complaints, most of which are grounded in identity politics and diversity concerns, Republicans have every reason to fear that Justice Garland would push Supreme Court jurisprudence in a sharply progressive direction. On the court of appeals, Garland was constrained by Supreme Court precedents and review. But on the Supreme Court he will possess enormous discretion to craft those precedents and will not be subject to higher authority. Garland’s pedigree—his work in the Clinton administration, his overall voting pattern on the court of appeals, and his careful vetting by the Obama White House—makes clear that on most important issues, his good-faith interpretation of the law will lead him to cast votes to the left of where Justice Scalia’s good-faith interpretations of the law led him to vote.

Because of the configuration of Justices on the Court, the replacement of Scalia’s vote with Garland’s would have enormous consequences. We don’t have to speculate about these consequences—the Supreme Court’s current docket makes it plain. On the day before Scalia died, the Court was poised to issue conservative 5-4 decisions that would have crippled public sector unions, set back affirmative action, invalidated the President’s scheme to postpone deportation of illegal immigrants, gutted the President’s Climate change initiatives (at home and abroad), and, possibly, narrowed abortion rights.

In each of these cases, swing Justice Anthony Kennedy leaned right and Justice Scalia was a reliable fifth conservative vote. But the replacement of Scalia with Garland makes Garland, not Kennedy, the swing Justice. And that “would make the justice at the center of the court more liberal than at any point in nearly 50 years,” noted the New York Times. There is little doubt that in this term’s big cases, Garland would join the four liberals on the Court rather than the four conservatives. The replacement of Scalia by Garland thus portends a dramatic change in the legal direction of some of the most important and contested issues in American society. In this respect the Garland nomination reveals more clearly than perhaps any episode in American history how deeply “political” Supreme Court jurisprudence is.

President Obama understands how the replacement of a conservative Justice with a moderately liberal appellate court judge can have giant consequences for American law. He is probably thrilled with the negative reaction by progressives, which makes credible his claims about Garland’s balance and reasonableness.

The Republicans get it too, which is why they are taking the highly unusual though undoubtedly constitutional step of denying Garland a hearing until after the election. It is unclear, however, that the Republican strategy makes sense. Party leaders appear to believe there is little cost to delaying a vote on Garland until after the election. If they win the presidential election, they reason, they can put someone more like Scalia on the bench. And if Hillary Clinton wins, they can confirm Garland during the lame-duck session between administrations and avoid a more liberal Clinton nominee. In the meantime, they can rally the base, or at least tamp down its wrath, by refusing to consider Garland.

And yet as Brookings Senior Fellow Benjamin Wittes noted, Republicans should ask themselves whether it will “play well … to block one of America’s finest jurists in order to hold the seat open for Donald Trump to fill.” Even with the Trump wild card—who knows whom a President Trump would nominate?—Republicans think it will play better than any alternative in the short term. But they are overlooking longer-term dangers.

A Republican presidential victory at this point seems unlikely. If Trump is the nominee, he will become the face of Scalia’s jurisprudence and its main though ill-informed defender in an election where Republicans invited a judgment from the American people on Scalia’s work. By turning an election they will probably lose into a referendum on Scalia’s jurisprudence, and by allowing that jurisprudence to be linked to Trumpism (as Hillary Clinton will surely do), Republicans threaten to tarnish Scalia’s legacy and undermine the legitimacy of conservative jurisprudence for a generation or longer.

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