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Following the death of influential conservative Justice Scalia last month, Obama has nominated the moderate Judge Merrick Garland for the open space on the Supreme Court. Influential Republican figures have pledged to block any nomination of a Supreme Court justice until the incumbent president is out of office, but the choice of Garland will test their promise.
Since 1997 Garland has served on the court of appeals for the District of Columbia, the nation’s second most influential and important court, and since 2013 has been the chief judge on the court. In an extensive legal career Garland has remained moderate, and in normal times would seem to be a shoo-in for the nomination on both sides of the house. In fact, Republican Orrin Hatch called for his appointment on the court two decades ago, stating that he ‘would be very well supported by all sides’.
However these are not normal times, and just last month Orrin Hatch pledged to block any nomination of a judge to the court till the next president. This promise was made for fear of Obama nominating a liberal firebrand judge, but Merrick Garland instead presents a compromise to a notoriously obstructive Senate. Obama still lacks the majority in the senate that he needs to nominate the new judge, yet to block the appointment of Garland for the remaining 11 months of the presidency would be an unprecedented move (most appointments take 3 months on average).
Yet the race for the Democratic and Republican nominees will have a substantial influence on the decision of the senate over the next few months. With Hillary continuing to extend her lead over Sanders she seems almost guaranteed (barring an unlikely indictment) to reach the Democratic nomination, and Trump seems to be an unstoppable force for the GOP establishment. In a Clinton-Trump race the odds favour Clinton to a large degree, and with this knowledge the Republican Senate may settle for the bi-partisan offer of Garland, fearing a young, liberal choice from Clinton. In addition to this, many Senate Republicans are fearful of what a Trump presidency may bring, in which case either presidency would bring about the possibility of an unfavourable nomination.
Mitch McConnell, the majority leader, took to the Senate floor on Wednesday to denounce the nomination. Taking the ‘principled’ stance McConnell claimed that the next president would appoint the Supreme Court Justice, yet until that time the Senate would veto any nomination. While this seems to be a death sentence for Garland’s hopes, over the next 11 months as the race for presidency develops Obama may be able to convince some Republicans rebels to support Garland. Furthermore, many may choose of their own will to abandon their populist promise and take the offer, for fear of regret when 2017 rolls around.