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Wednesday, December 21, 2016

Ahead and behind in the Merrick Garland debacle

Merrick Garland will not be on the Supreme Court. Garland has resumed participating in cases on the D.C. Circuit (for the past 240 days, he had only been performing his administrative chief-judge tasks) and is scheduled to sit on a panel in mid-January. Some still hold out hope that President Obama will surprise everyone and make a recess appointment on January 3. But as I wrote previously: 1) that is not Obama's style and 2) because the Republican Senate will not affirm the appointment, it would end at the close of the next session of Congress in December 2017, leaving Garland without a job (since he will have given up his D.C. Circuit seat) at only 65 years old, a deal I do not see him taking. We might add as a # 3 that if Obama did this, Congress could enact a law in January declaring the first session of the 115th Congress over immediately, thereby terminating Garland's recess appointment immediately.

For now, I want to consider who within or around the Court comes out ahead and who behind in this debacle.

Obviously, Garland is worst off, as he never will take a seat on the Court despite being as qualified as any recent nominee. The other person who is worse off is Justice Kagan, whose role on the Court has changed, perhaps for the whole of her tenure. She is now the best, most engaging writer on the Court. Given the opportunity to work with a liberal majority with Breyer or Garland as the Court's median, Kagan might have assumed the William Brennan role of the intellectual heart of the liberal majority, crafting doctrine and decisions to hold that majority together and perhaps even appeal to the rest of the Court more broadly. Particularly once Justice Ginsburg left the Court, Kagan might have been the intellectual center of a liberal Court.

The obvious person to come out ahead is whoever Donald Trump puts on the Court, who otherwise would not have gotten there. The other is Chief Justice Roberts. He avoids the prospect of being a Chief regularly in the minority and assigning dissents rather than majority opinions (the scramble to find an historical example of a Chief in that situation landed on Charles Evans Hughes during the New Deal, although he was not a consistent vote in favor of the validity of New Deal legislation). Or the alternative prospect of regularly moderating his own constitutional views to join the majority in order to retain the assignment power.

Posted by Howard Wasserman on December 21, 2016 at 11:37 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


"Nah, he is going to be in the Senate.

Anyway, note that I limited my discussion to "within or around" the Court, not wanting to get into the partisan politics of this."

Understood. Sorry to have politicized this blog post.

Posted by: Ian Sirota | Dec 22, 2016 2:14:15 PM

From 1991-2005, Scalia had a conservative Chief, Thomas, Kennedy, and himself with O'Connor (and for a couple more years, White) more likely to go with him than the Court's liberals on most issues. From 2005-15, he replaced O'Connor with Alito and really lost Kennedy only on LGBT stuff. I don't see how much more of a majority he could have wanted. Nevertheless, he eschewed the kind of coalition- and majority-building that Brennan was so good at.

Posted by: Howard Wasserman | Dec 22, 2016 1:33:35 PM

I think the Kagan angle is quite interesting. Brennan is an interesting point of comparison but so is Scalia. Would Scalia have been Scalia if there had been a conservative majority for all or most of his tenure on the Court? Perhaps some Justices thrive in the minority while others thrive in the majority.

Posted by: brad | Dec 22, 2016 12:20:21 PM

Nah, he is going to be in the Senate.

Anyway, note that I limited my discussion to "within or around" the Court, not wanting to get into the partisan politics of this.

Posted by: Howard Wasserman | Dec 22, 2016 11:22:37 AM

You know who the biggest "loser" in this whole imbroglio is? The American people. Judge Garland would have been an excellent Justice. Further, given who President-Elect Trump has named to his Cabinet, it would not shock me if a reactionary like suspended Alabama Chief Justice Roy Moore gets nominated.

Posted by: Ian Sirota | Dec 22, 2016 11:18:57 AM

Howard, Homer Throneberry is a more appropriate comparison to Garland than Bork as he was a lower court judge nominated for a seat on the Supreme Court that was not voted on. Carswell was subject to a vote and turned down by the Senate.

Posted by: PaulB | Dec 22, 2016 10:57:23 AM

Interesting. On the one hand, his historical profile is raised beyond that of a mere lower-court judge; he becomes a footnote in American political history, and one likely on the level of Robert Bork than Harold Carswell or Homer Thornberry. On the other, I cannot imagine the personal angst of being so close to the pinnacle of success in one's career and having it taken away in such a crass manner. One question is whether this will come to define the rest of Garland's life the way it did with Bork but did not (appear to) with Ginsburg.

Posted by: Howard Wasserman | Dec 22, 2016 7:49:06 AM

I agree that Judge Garland is worse off as compared to being confirmed to the Court. An interesting question, though, is whether Judge Garland is worse off for being nominated in the first place.

Posted by: Orin Kerr | Dec 22, 2016 12:14:49 AM

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