Hillary Clinton refused to say his name during the presidential debates. But there is a strong chance she will seize it if she wins the election.
Federal appeals court judge Merrick Garland, whom President Barack Obama nominated to succeed the late Supreme Court Justice Antonin Scalia, has stalled in the Republican-controlled Senate. That has left the nation’s highest court shorthanded, prone to ideological deadlocks and plainly wary about taking up some contentious disputes.
Even as the Democratic nominee has decried the Senate’s failure to act, she has declined to refer to Garland and intimated she might favor a different nominee if she becomes president.
Several scenarios are possible, hinging not just on the results of the presidential election but also on Senate races and which political party controls the chamber. But if Clinton wins, here are key factors that ultimately could lead her to name Garland to the high court:
Bipartisan support in a fractured Congress
He would have ready-made bipartisan support as Clinton tries for some semblance of political cooperation in the wake of this turbulent campaign. He is more moderate than her liberal base would desire, but no alternative name is now galvanizing the left. And in the orbit of Democratic insiders, many of her people are his people.
Garland, who is white and turning 64 in November, would not give Clinton a way to make history, say, with the first African-American woman or first Asian American on the bench. But he could give her a way to make peace.
President Obama is pushing for Senate action on Garland in the “lame duck” period before a new president takes office in January. But Senate Majority Leader Mitch McConnell, Republican from Kentucky, has not flinched in his insistence that Scalia’s seat should be filled by Obama’s successor. It is difficult to see how pressure could build in the few remaining weeks the Senate is in session this year to induce Republican leaders to hold hearings and vote on Garland, a former federal prosecutor and now chief judge on the US Court of Appeals for the District of Columbia Circuit.
Some Democrats believe if Clinton is elected on November 8, she would continue to signal interest in a new crop of diverse Supreme Court candidates, possibly to pressure Republicans who would prefer Garland over a robust liberal nominee.
Such Clinton moves would align with her earlier assertion that she would look “broadly and widely” for diverse candidates to fill a vacancy. In the recent debate she suggested she would seek individuals who would stand up to corporate and other powerful interests. Her campaign has not released any names of judges or lawyers who would be under consideration.
Among those who could be in the mix, based on the Obama team’s short-list and their continued regard among Democrats, are Sri Srinivasan, an Indian-American who is also on the DC Circuit Court of Appeals; Paul Watford, an African-American on the California-based US Court of Appeals for the 9th Circuit; and Ketanji Brown Jackson, a trial judge on the federal district court in Washington, DC. She would be the first African-American woman justice, as would be California Supreme Court Justice Leondra Kruger, another name raised as a possibility based on her background and credentials.
Other judges and lawyers were under review when Obama made his choice last March and would be with a President Clinton.
For his part, Donald Trump has put out lists of 21 court candidates, deeming them “highly respected … beautifully reviewed” possibilities. Garland did not make Trump’s lists.
A chance to preserve political capital
A new president’s strategy would necessarily depend on the political composition of the Senate, which has the power to confirm or reject a lifetime appointment to the nine-member court.
If the Senate is still dominated by Republicans, Clinton would have incentive to nominate a person the GOP would be readier to accept. Orrin Hatch, a Utah Republican and former Senate Judiciary Committee chairman who is the most senior GOP senator, has praised Garland (and was crucial to his 1997 appointment to the DC Circuit), but Hatch has endorsed McConnell’s decision to block action before the election.
A Democratic-run Senate would offer Clinton more latitude in her choice, but a Republican minority could still mount a filibuster and force the president to use precious early term capital to move a controversial nominee.
Even before a nomination becomes snarled in Senate politics, intra-administration clashes often arise over which way a president should turn, for example, toward a historic “first” — to the ideological interests of the party’s base, or, perhaps, to a safe selection that avoids distraction from legislative priorities. The ongoing Garland situation would add a new wrinkle to such usual rivalries, because here the nation’s top Democratic leader already has singled out Garland above others in the field.
Close ties to Clinton’s orbit
Garland also came from the Clinton world. He was a deputy assistant attorney general in Bill Clinton’s administration before the president appointed him to the DC Circuit.
One of Garland’s strongest boosters is Jamie Gorelick, a Washington lawyer who was deputy attorney general in the 1990s and is still tight with the Clintons. A connection of more recent vintage is Karen Dunn, a former law clerk to Garland who took a leading role in preparing Hillary Clinton for the debates.
Garland is also a personal friend of Justice Ruth Bader Ginsburg, whom Bill Clinton chose for his first high court appointment, in 1993, and who at 83 is now the eldest justice.
In a wide-ranging interview in July, Ginsburg lamented the stalled Garland nomination. I asked if she would ever try to help his prospects by passing word to Clinton of her own possible retirement in the near future, which would ensure subsequent opportunities to appoint younger, perhaps more liberal or groundbreaking justices.
Ginsburg said she did not believe any overt signal was necessary, declining to be explicit about her own plans yet observing that two justices are not far behind her in age, Anthony Kennedy, 80, and Stephen Breyer, 78.
“I think she has figured it out,” Ginsburg said of Clinton. “She’s bound to have a few appointments in her term.”