As a lawyer who practices in court and whose clients are often affected by the decisions of the U.S. Supreme Court, I’ve been giving a lot of thought to whether President Obama’s nominee to succeed Justice Scalia, Judge Garland, should be given full consideration by the Senate, or whether the Senate would be justified in refusing to seriously entertain that nomination—or any other one by Obama--in favor of dealing with the new President’s nomination in January 2017. Some interesting considerations lead me to conclude that, on balance, any nomination by the current President should be given the shortest of shrift.

Image of ancient pillarsThe least persuasive factor is that the President has the Constitutional right to nominate departed Justice Scalia’s replacement. That’s true, but it’s also true that the Senate gets to approve or reject the nomination. There is no basis for treating the process as the Senate’s “rubber-stamping” the President’s choice. A much more serious proposition is that an outgoing President ought not to be able to foist his choice on the American people, precisely because he will no longer be their choice, and his preferences will not matter a whit, come November of this year. For that matter, the Senate will surely look differently in November: Why should the current senators, who may be history soon, have such a long-lasting impact—a generation or longer, given the longevity of Supreme Court justices-- on the nature of the judiciary?

It is therefore not a Democrat or Republican issue, but one of fairness to the voters: It is the people’s chosen representatives, whether the President or senators, who should most influence the makeup of the Court; they do that by voting, and the most recent voting should determine the Court’s composition, not the election of 2012. Once upon a time, some decades ago, one would not hear so much about the political structure of the Court. But we must acknowledge the reality that the Supreme Court has become as politicized as any other branch of government, even though the Framers surely did not envision that reality. If you doubt the political nature of the Court, note that any Court observer can tell you, in almost every case, who will vote for which side. Worse, the division most often features the same justices on the same side, divided by left and. In other words, so many of the cases that are accepted by the Court (they choose most of what they will hear) are chosen and decided based on political philosophy. It is altogether reasonable that the voters should have an impact on which philosophy will hold sway for the indefinite future.

One other consideration is that, from a conservative standpoint, the Senate can show its displeasure toward the left-wing, result-oriented solidarity of the Court’s liberal bloc, by preventing the leftist Obama from tipping the balance and ensuring the appointment of a fifth liberal justice. The Republican Senate has no duty to allow the outgoing President to shift the Court’s composition such that decades of the most consequential legal precedents—in all areas of our lives—will be liberal or leftist. If the next President is a Democrat, that will inevitably happen. But there is no reason to assume that result or to ensure its resulting historical change in the direction of the Supreme Court.