Vikram Amar is dean of the University of Illinois College of Law and the Iwan Foundation Professor of Law. Amar, an expert in constitutional law and the federal courts, spoke with News Bureau business and law editor Phil Ciciora about President Obama’s nomination of Merrick Garland to the Supreme Court.
If confirmed, how would Merrick Garland change the Supreme Court?
It’s hard to say. While we can make some predictions about how a Justice Garland would vote, many issues that confront the court are not ones on which he has made his own thinking clear, to say nothing of how justices evolve in their views after they are appointed. It bears noting that while presidents and senators may and should ask a nominee what he thinks about particular important rulings and issues – even if those rulings or issues are likely to come before the court again – nominees cannot be asked to make promises or commitments.
A Garland appointment would mark the first time in 40-plus years when a majority of the court was appointed by a Democratic president. And adding another moderate-to-liberal justice could, in theory, call into question a number of controversial 5-4 Supreme Court precedents, including cases involving the role of money in politics; the Second Amendment right to keep guns; the validity of the Voting Rights Act; lethal-injection protocols used in executions; religious exemptions from requirements to provide insurance coverage for contraception; and prayers at town hall meetings.
Not all such cases would be overturned, either right away or even over time. Justices must pick their spots. Rapid change on account of new membership is precisely what the doctrine of “stare decisis” – that is, respect for judicial precedent – is designed to avoid, and all justices pay some attention to it.
Moreover, there are some rulings, like Citizens United, where it might be easier to write a feisty dissent than to convert that dissent into a majority ruling that announces a coherent principle to guide matters going forward.
Remember, too, that a Justice Garland might have a voting record like those of justices Breyer and Kagan, two Democratic appointees who have been known to be centrists in some major cases.
If it were any normal year, would Garland be confirmed? At a minimum, does he deserve an up-or-down vote?
If we were not in the midst of presidential primaries, the Republican Senate majority certainly could not make the “this pick belongs to the next president” argument. But that does not mean Garland would have been confirmed by this Senate a year ago. We live in such partisan times that I could imagine Republican senators voting no on virtually anyone President Obama might nominate.
Notwithstanding what some law professors have publicly argued, the Senate is under no constitutional duty to hold hearings. Article II, Section 2 of the Constitution says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various high-level executive and judicial officers. This means simply that the president may not appoint a justice without the Senate’s “consent” or approval, not that the Senate must express its lack of consent in any particular way or along any particular timeline.
None of this is to say that the Senate is acting responsibly in refusing to consider anyone the president nominates – it is not. Its stance is not justified by past practice, and it risks even more extreme retaliation by Democrats whenever they regain the Senate.
If a Democrat wins the presidency in November, I suspect Garland might be confirmed by a lame-duck Senate before next January, mostly because anyone that a President Hillary Clinton or a President Bernie Sanders might nominate would be even less acceptable to Republicans than Garland.
If they look closely at his record, his temperament and his age, Republicans should, on the merits, find much to like, relatively speaking, about this nominee. I hope they get to the point of doing that.
President Obama has said that a rebuff of Garland would damage the Supreme Court’s reputation – that it becomes “a pure extension of politics.” Do you agree?
Right now, I think the main damage being inflicted is to the idea that anything can ever get done on Capitol Hill. But this kind of standoff does reinforce the wrong message that the court operates no differently than Congress or the executive branch.
There is, to be sure, an ideological component of constitutional interpretation, but how the court goes about its work, in all but a handful of the most contentious cases, is very different than the overtly partisan activities that characterize the other branches of government. I would hate to see that nuanced-but-important distinction get lost in the shuffle.
If the Senate fails to vote on Garland or another nominee before the presidential election, there will have been a vacancy on the Supreme Court for over a year. Does that weaken or compromise the court?
I don’t think a one-year or longer vacancy itself prevents the court from doing its job in the long run. Major issues on which the eight current justices might divide evenly, and on which the country needs direction, will almost always recur in the coming years. But the bigger question is what the reason for the long vacancy tells us about the state of dysfunction and partisanship at all levels of government, including the nation’s capital. The extent to which the underlying causes of this episode weaken or compromise us as a country is the bigger question.