By Josh Averbach ’18

In response to the February death of conservative Supreme Court justice Antonin Scalia, President Obama has sought to fill the vacancy in the nation’s highest court. In March, Obama nominated Merrick Garland, a federal judge. Senate Republicans, however, are committed to ensuring that Garland is not confirmed. This strategy of obstructionism is a mistake because Garland is not particularly liberal.

Republican Senators obviously want the Supreme Court’s bench to be occupied by conservative justices who will concur with conservatives in the legislature. While Garland is not a staunch conservative, he is not really a liberal, either. In fact, shortly before Garland was nominated, Senator Orrin Hatch, a member of the Judiciary Committee, predicted that Garland would not be nominated because he is too moderate.  At age 63, Garland is approximately a decade older than the average age of recent Supreme Court nominees, according to Politico, potentially reducing the amount of time he serves for. Because of his lack of a clear liberal ideology, and to a lesser extent, his relative old age, Garland seems like someone that Senate Republicans should find tolerable.

If Republicans do not confirm Garland, they run a substantial risk of the next president successfully appointing a justice who is much more hostile to a conservative agenda. At this juncture, it appears that the white House will likely remain controlled by the Democrats after the upcoming election. Hillary Clinton, who has virtually secured the Democratic Nomination, beats presumptive Republican nominee Donald Trump in virtually every poll pitting the two against each other in a hypothetical general election. Republicans also may not control Congress after the election. According to a survey by Rasmussen Reports from late February, only 11 percent of likely U.S. voters think that Congress is doing a good or excellent job, and the majority of Americans believe that Congress is doing a poor job. If the majority of Americans disapprove of Congress, then Americans will likely vote some members of Congress out of office. If this happens, then Republicans may lose their majority in the senate. While this is all highly speculative, a Democratic president and a Senate no-longer dominated by Republicans would likely appoint a younger and more liberal justice than Garland, making Senate Republicans regret their strategy of obstructionism.

Senate Republicans have refused to confirm Obama’s nomination on the grounds that a second-term president should not make an appointment during his “lame duck” period- the period at the end of a president’s term when presidents have traditionally taken a back seat. There is nothing in the constitution exempting presidents from their duty to fill vacancies in the Supreme Court during the latter stages of their presidency. Furthermore, according to the fact-check website Politifact, presidents have not historically stopped nominating judges at the end of their presidency. Frankly, this is a bad excuse for Republicans not to confirm Garland.

Clearly Garland is not the ideal judge for conservatives like Scalia was. Scalia was a leading conservative legal scholar for decades. He was appointed by Ronald Reagan, who is virtually deified in many conservative circles. In politics, however, compromise is essential. Garland is moderate and reasonable enough that Republicans should confirm him, unless they want to risk having Scalia’s vacancy filled by someone far more liberal.