Vacancy on the U.S. Supreme Court

15 April 2016. On March 16, 2016, President Obama nominated Judge Merrick Garland to fill the vacancy on the U.S. Supreme Court left by the deceased Justice Antonin Scalia, who was the unofficial leader of the conservative caucus at the Court. Supreme Court nominees have to be confirmed by the Senate, which is currently controlled by the Republicans. Indeed, Republicans made it clear after Merrick Garland’s nomination that there was not going to be a confirmation vote on the Senate floor before the presidential election this fall. The question is, however, whether this was a wise move.

Nominating a candidate for the Supreme Court is one of the most important decisions that a U.S. President makes. The nine Justices have the power to declare federal and state laws unconstitutional, and the only way of overturning a Supreme Court ruling would be to amend the U.S. Con-stitution. This is practically impossible when there is no political consensus on a question.

Extension of influence
An appointment to the Supreme Court is considered to be the biggest distinction in any legal career. As the Justices have life tenure (even though they often resign around age 75), the President can extend his influence far beyond his term of office through a Supreme Court nomination. For instance, four out of the eight sitting Justices (and also Justice Scalia) were nominated by President Reagan, Bush sen. and Clinton, respectively.

President Obama’s choice put the Republicans in a bind. If they confirm Merrick Garland, the balance on the Supreme Court would tilt from a 5-4 conservative majority to a 5-4 liberal majority. It would be difficult to reverse that, as Justices usually only retire when the incumbent President would nominate a successor who shares their political leanings.

If not now, then when?
If Republicans do not confirm Garland, their situation hardly looks better: Given the frontrunners in the Republican presidential primaries, there is a substantial likelihood that a candidate will be nominated who has little chance to win the general election. If, as a result, Hillary Clinton is elected President, she will hardly nominate a conservative candidate for the Supreme Court, and Republicans cannot refuse to confirm any liberal candidate throughout Clinton's entire term.

Plus, the White House has started a PR campaign to win over public opin-ion on President Obama's choice. For example, there is a microsite on the website of the White House which is specially dedicated to President Obama's Supreme Court nomination. The site depicts Garland as a family man and a tough former federal prosecutor in high-profile terror cases and prophylactically blames the Republicans for any delays in the confirmation process.

Given Garland’s seemingly impeccable record, Republicans may well have to take the blame if the Senate does not confirm his appointment before the presidential election. As a result, Republicans may alienate moderate voters.

Lesser of two evils
Republican strategists should weigh their options carefully. They will probably wait and see who their presidential candidate will be. If it is Donald Trump or Ted Cruz, both of whom have a rather weak chance of being elected, confirming Garland may well be the option which is less harmful to the conservative cause: If Hillary Clinton is elected, she may nominate a candidate who is more liberal and younger than 63-year old Garland, in which case the Supreme Court may be liberally-dominated for decades to come.

Dr. Daniel M. Häusermann, LL.M. (Harv.), is Privatdozent for private and commercial law at the HSG. He lived and conducted research in the U.S. for two years.