Opposition to SCOTUS nominee could be politically dangerous, say Emory scholars

March 16, 2016

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Elaine Justice
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Megan McRainey
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Judge Merrick Garland, President Obama’s Supreme Court nominee, will pose a political challenge to Republicans in the House and Senate who have stated publicly that they will obstruct any nomination made by Pres. Obama, say Emory University’s Supreme Court scholars.

“Judge Merrick Garland is an experienced and highly respected judge and former prosecutor. He is admired by conservatives as well as liberals. So this is a nominee with unimpeachable qualifications,” says Mary L. Dudziak, Asa Griggs Candler Professor of Law.

“Legal scholars across the political spectrum are weighing in in favor of Garland. This will make opposition seem baldly partisan and obstructionist. Look for Republicans to scour Garland’s record to make opposition appear to hinge on the outcome of particular issues like Roe v. Wade. That has been the way Republicans like Ronald Reagan have successfully used the Court as a campaign issue in the past,” Dudziak says.

Garland’s reputation for being a moderate will also make obstructing his nomination challenging for Republicans, says Tom Clark, Asa Griggs Candler Professor of Political Science and an expert in judicial politics.

“Merrick Garland’s judicial philosophy is more moderate than Obama’s previous nominees - he’s very much a moderate. This nomination puts Republican Senators in a very difficult position, as this is exactly the kind of nominee Senators claim to want and the kind of nominee that, barring some major scandal, always passes through the Senate with ease,” says Clark.

“If the Republicans in the Senate want to block Judge Garland, they will have to make a difficult case to their constituents for why,” Clark adds.

While younger nominees are often considered desirable due to the potential length of their tenure on the Supreme Court, Garland’s age (63) is an advantage for the Democrats in this exceptional case, says Robert A. Schapiro, Dean and Asa Griggs Candler Professor of Law.

“Confirming Garland would avoid the risk of a younger, more liberal nominee from would-be President Hillary Clinton,” says Schapiro.

“As he is a former federal prosecutor who garnered Republican support for his nomination to the Court of Appeals, Garland’s record also presents little fodder for substantive opposition,” Schapiro adds. “If Garland had been nominated by a Democratic president under any other circumstances, many Republican senators likely would have voted for his confirmation with a mixture of enthusiasm and relief. But these are unusual times, and Garland’s nomination is likely to languish, as Republicans look toward the November presidential election and continue to hope for a nomination from a Republican president,” says Schapiro.

Emory experts available for media interviews:

Robert A. Schapiro

Dean and Asa Griggs Candler Professor of Law

Emory University School of Law

dean@law.emory.edu

404.712.8815

Tom Clark

Asa Griggs Candler Professor of Political Science

tclark7@emory.edu

404.727.6615

Mary L. Dudziak

Asa Griggs Candler Professor of Law, Emory University School of Law

Vice President, Society for Historians of American Foreign Relations

marydudziak.com

404.727.3263