Hillary Clinton doesn’t want you to know who she would name to the Supreme Court.
Late in Thursday night’s debate between Clinton and her Democratic rival, Sen. Bernie Sanders, Clinton was asked if she would ask the president to withdraw Chief Judge Merrick Garland’s nomination to the Supreme Court — presumably so that she could select her own nominee — if she wins the presidential election. Clinton rather explicitly refused to answer the question. “I am not going to contradict the president’s strategy on this,” she began. Then, after briefly supporting President Obama’s right to name a justice and calling upon the Senate to consider Garland’s nomination, Clinton offered what may be the single most significant sentence she said last night:
“When I am president, I will take stock of where we are and move from there.”
It’s a noncommittal statement that hardly comes off as a robust endorsement of the Garland nomination. Nevertheless, both Garland and the White House should be thrilled that Clinton took this approach. Her non-commitment to Garland is the judge’s best chance at confirmation.
To explain, Garland, at age 63, is the oldest Supreme Court nominee since the Nixon administration. That means that he is much less likely to serve for decades as a justice than if the president had named a younger alternative. Additionally, Garland, who has 19 years of experience as a federal appellate judge, is widely viewed as a centrist.
The Supreme Court nominee’s record reveals a modest, restrained judge who is both deferential to the democratically elected branches of government and cautious about departing from precedent. Garland is a former prosecutor who tends to be more skeptical of claims by criminal defendants than most Democratic appointees to the federal appellate bench. Meanwhile, in civil cases, he tends to defer to agencies’ expertise in the areas that they regulate and to be very cautious about displacing established legal doctrines.
In the short term, that means that Garland would probably be a reliable member of the Supreme Court’s liberal bloc. Because conservatives enjoyed a majority on the Supreme Court until the death of Justice Antonin Scalia last February, liberals had little reason to bring aggressive legal claims (outside of the LGBT rights context) because they were all but certain to lose such cases before the justices. Meanwhile, conservatives grew increasingly ambitious, asking the Court to push the law further and further to the right. In these cases, Garland’s restrained approach and his respect for precedent will align with his generally left-of-center politics. There’s no reason to expect him to join the Court’s conservatives who want to actively move the law rightward.
Should he be confirmed, however, liberals will soon start bringing ambitious cases of their own — and it is far from certain how Garland will vote on many of these issues. When should federal courts step in to prevent partisan gerrymandering? Can low-income children be denied the same educational resources as wealthy children? Does the right to abortion include a right to publicly funded abortion? Does the Constitution limit state efforts to roll back affirmative action programs?
Garland is likely to view at least some of these cases as a bridge too far, while a more liberal nominee might be more eager to give liberal litigants what they are asking for. In the worst case scenario for Republicans, a future Democratic president could name a liberal counterpart to Justice Samuel Alito, a justice whose votes in politically charged cases matches almost exactly with how he would vote if he were an elected lawmaker.
Right now, Senate Republicans appear committed to their strategy of denying Garland a confirmation vote or even a hearing, and conservative interest groups are applying considerable pressure on any Republican senator who dares to depart from this strategy. But five months from now the facts on the ground could change considerably.
Come September, if Hillary Clinton is the Democratic nominee and polls predict that she will be the next president, Republicans may decide that they are better off taking the offer that is on the table than waiting to see if Clinton swaps out Garland for someone younger and more open to aggressive efforts to move the law leftward. But Republicans certainly will not reach this conclusion if they think that Clinton will simply renominate Garland if she is elected.
That is why it is so significant that Clinton refuses to fully embrace Judge Garland. Even if she fully intends to renominate Garland on her first day in office, Clinton would do considerable violence to Garland’s chances of being confirmed this year if she said so out loud.
Sanders, for his part, has explicitly said that he would choose a more progressive nominee if elected president (though he will “strongly support” Garland’s nomination prior to the election). Clinton does not necessarily need to go that far in order to leave the door open to Garland being confirmed this year.
Nevertheless, the best thing Clinton can do for Garland right now is keep a little bit of distance from him. Judge Garland’s best shot at becoming Justice Garland before President Obama leaves office depends on Republicans believing that the next president could name someone that the GOP will like less.