World View: Barack Obama’s choice puts ball in Republican court

A new front in the battle for the White House and control of the US Congress opened up this week with Barack Obama's nomination on Wednesday of 63-year-old judge Merrick Garland to succeed the late Antonin Scalia on the US Supreme Court.

This is no mere judicial appointment.

With the potential to shift the direction of the now evenly-split court for a generation, Obama has decided to face down the Republican Senate majority, gambling that voters in marginal seats will not be impressed by their nakedly partisan refusal to honour their constitutional obligation to "advise and consent" on nominations or even consider it until after the presidential election "gives voters a say".

Wealthy legal campaign groups are already pledging millions of dollars to public campaigns for and against Garland.

At stake, Democrats argue, are a range of battleground policies central to US politics from abortion rights to the death penalty, gun rights, political donations, Obamacare . . . where the Republican-dominated court in recent years has shaped a legal landscape and culture at variance with changing social values.

Over the longer term, a more liberal majority could reconsider some of the historic 5-4 rulings of the past decade: the 2010 Citizens United decision that allowed corporate contributions to political campaigns, the 2013 ruling that struck down a central provision of the Voting Rights Act and opened the door to new state voting restrictions, and Scalia’s 2008 decision that interpreted the Second Amendment to allow private citizens to keep handguns in the home for self-defence.

Alarming

The prospect that

Donald Trump

as president might get the chance to fill the vacancy is also alarming many voters.

“Presidents do not stop working in the final year of their term; neither should a senator,” Obama said in a formal Rose Garden ceremony, echoing the call to Republican senators and pointedly to Senator Mitch McConnell, the Republican majority leader, to “do your job”.

Obama has gone out of his way to pick a nominee whose centrism makes him difficult for Republicans to oppose.

“If you tried to create the ideal moderate Supreme Court nominee in a laboratory, it would be hard to do better than Judge Merrick Garland,” the New York Times argues.

A graduate of Harvard Law School, like Scalia, he was clerk for a pair of legendary judges, Henry Friendly and William Brennan, and a partner at a prominent law firm which he gave up to work for a lot less money as a prosecutor in the District of Columbia.

He was a justice department official and then judge for the last 18 years on the second most important court in the US, a record on the bench that exceeds any of the court he would join before they were appointed.

His appointment to the Washington bench in 1997 sailed through Senate endorsement easily, with strong support from both Democrats and Republicans.

Moderate jurist

Garland is, by most accounts, a moderate, un-ideological jurist whose record suggests a reluctance to engage in judicial activism and a commitment to not making laws, but interpreting them.

Conservative critics find evidence of his liberalism, however, in a decision of his to back gun control in a DC case.

“Confirming Garland to the Court would entrench those [liberal] policies and secure judicial imperialism’s grip on the body politic,” the conservative National Review insists.

But for many Republicans it is clearly a case of using Obama’s alleged loss of democratic legitimacy in his final year – a concept that the constitution does not recognise – as an excuse to block a nominee they disapprove of.

Charles Geyh, an Indiana University law professor and author of a recent book on judicial politics, suggests the record is not so clear.

Garland “is someone not as predictably on one side or the other”, he says. “As close to a consensus choice as you’re likely to find.’’

He predicts that Garland would probably be an Anthony Kennedy-like swing vote figure on the court.

For Republican hawks, however, consensus or middle ground is no replacement for Scalia.

That determination to let the “voters have their say” was wavering on Thursday, however.

Some Republicans, including the influential Orrin Hatch from Utah – in 2010 he said Garland would be a “consensus nominee” and that there would be “no question” that he would be confirmed to the Supreme Court with bipartisan support – suggested that the Senate could consider the nomination in the “lame duck” period following the election of a new president but before he or she actually took office.

That would allow them to ensure that in the event Hillary Clinton was elected she would not be able to replace Garland with a more radical nominee.

A case of letting voters have their say and then ensuring they did not have their way.