What Clinton Won’t Say: Whether Garland Is Her High Court Pick

  • Democrat hasn’t said whether she would renominate judge
  • Election Day vacancy would be Supreme Court’s first since 1968

U.S. Supreme Court nominee Judge Merrick Garland waits for a meeting with Senator Brian Schatz on Capitol Hill on May 10, 2016, in Washington.

Photographer: BRENDAN SMIALOWSKI/AFP/Getty Images

Hillary Clinton has started talking to reporters again, but there’s still a big question she hasn’t answered: Would she re-nominate Merrick Garland to the open seat on the Supreme Court?

Garland, President Barack Obama’s nominee to the high court, has been stymied by Senate Republicans for months. The Democratic presidential candidate has studiously avoided saying whether she would renominate Garland for the vacancy if it is still pending next year.

Clinton’s decision would shape both the direction of the court and tone of her presidency. She could stick with Garland, a 63-year-old moderate whose nomination has languished since March. Garland would shift the court to the left but not as far as some liberals would like.

Or she could opt for a younger, more progressive nominee, as well as the bigger confirmation fight that would invite.

Clinton hasn’t held a formal press conference since December, helping her duck questions about Garland. With the first of three presidential debates set for Sept. 26 -- and with the candidate now taking questions from reporters on her plane -- Clinton may find it increasingly hard to remain uncommitted on Garland as Election Day approaches.

Post-Election ‘Hypotheticals’

When she was asked about the Garland nomination at a Democratic primary debate in April, she refused to address what she called post-election “hypotheticals.”

“When I am president, I will take stock of where we are and move from there,” she said. Clinton spokesman Brian Fallon did not respond to requests last week for a statement when asked explicitly whether Clinton would nominate Garland as her own choice.

Republican nominee Donald Trump, for his part, has offered a list of 11 conservative judges he would consider nominating for the vacancy, although he wouldn’t be bound by the list and has said he might add additional names. 

The Senate could still confirm Garland in a lame-duck session after the election. So far, Senate Republicans have held firm that the next president should make the pick.

Potential Makeover

Either way, Clinton or Trump will preside over what could be a historic Supreme Court makeover. The current opening, created by Antonin Scalia’s Feb. 13 death, could be the first of several, given that three other justices are 78 or older.

Even by itself, the next appointment could usher in a major shift. By succeeding the conservative icon Scalia, Garland or another Democratic appointee could make the court more receptive to gun restrictions and campaign-finance regulations and more skeptical of curbs on abortion and voting rights. The Supreme Court hasn’t had a vacancy on Election Day since 1968.

Clinton has said only that the Senate should consider Obama’s nomination of Garland. Elizabeth Wydra, president of the progressive Constitutional Accountability Center, said that stance helps explain why Clinton won’t discuss what she would do as president.

“She is being respectful to the constitutional process by expecting the Senate Republicans to do their job and confirm or at least consider President Obama’s nominee,” Wydra said.

No ‘Accident’

Still, Senate Republicans’ refusal to take up the nomination has eliminated any realistic possibility of confirmation before the election. With the vacancy lingering, Clinton’s plans -- and her silence about them -- are becoming an increasingly important subject as voters prepare to cast their ballots.

“It’s not an accident,” said Todd Gaziano, a constitutional law scholar who runs the Washington office of the conservative Pacific Legal Foundation. “She’s trying to avoid the question obviously because she doesn’t want to provide the voters and the public with her position.”

Clinton has discussed the court in general terms, seeking to rally her political base. At the Democratic convention in July, she said the court needs justices “who will get money out of politics and expand voting rights, not restrict them.”

Conflicting Pressures

A President-elect Clinton would face conflicting pressures over the vacancy. Garland, a consensus-building appellate judge once recommended for the high court by Republican Senator Orrin Hatch of Utah, would be the safe choice, all but guaranteeing easy confirmation.

Clinton could back Garland even without re-nominating him herself. Should she win the election, she could urge Senate approval during a lame-duck session before she takes office. That would provide political cover for Republicans who have said they will wait for the next president to make the selection -- and avoid extending what already is the longest Supreme Court vacancy since 1970.

“There is a lot to be said for having Judge Garland confirmed before she gets into office,” Wydra said. “It means she doesn’t start her term with a big Supreme Court fight on her hands and instead can focus on other, legislative priorities.”

Such a step would disappoint liberals hoping for a bolder selection. Garland, who turns 64 in November, is known more as a judicial craftsman than as an advocate for sweeping constitutional change. His confirmation would leave the court with only two racial minorities and three women.

Obama chose Garland over two considerably younger federal appellate judges: Sri Srinivasan, 49, who could have been the court’s first Indian-American, and Paul Watford, now 49, who would have been the third black justice in the nation’s history.

Other Alternatives

Richard Trumka, president of the AFL-CIO, said last week that while he viewed Garland as a “great judge,” he wasn’t prepared to urge re-nomination.

“There could be somebody better,” Trumka told reporters. “And if somebody better comes along, we’ll support them.”

One factor may be the race for the U.S. Senate, where Democrats could take control by picking up four Senate seats and retaining control of the White House. That could give Clinton leverage to pick a nominee who might not attract much Republican support.

“She really ought to say now whether she wants Merrick Garland to get a prompt hearing if she is elected, or if he is not qualified and sufficient in her view,” said Gaziano of the Pacific Legal Foundation. “If not, we should know who is.”

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