Congress Executive Branch

The Danger To Scalia's Legacy In the Republican's Garland Strategy

Jack Goldsmith
Thursday, March 17, 2016, 12:22 PM

Over at Time I have an essay on the Garland nomination. Following on a point Ben made yesterday, I argue:

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Over at Time I have an essay on the Garland nomination. Following on a point Ben made yesterday, I argue:

It is unclear, however, that the Republican strategy [to deny Garland a hearing before the presidential election] makes sense. Party leaders appear to believe there is little cost to delaying a vote on Garland until after the election. If they win the presidential election, they reason, they can put someone more like Scalia on the bench. And if Hillary Clinton wins, they can confirm Garland during the lame-duck session between administrations and avoid a more liberal Clinton nominee. In the meantime, they can rally the base, or at least tamp down its wrath, by refusing to consider Garland.

And yet as Brookings Senior Fellow Benjamin Wittes noted, Republicans should ask themselves whether it will “play well … to block one of America’s finest jurists in order to hold the seat open for Donald Trump to fill.” Even with the Trump wild card—who knows whom a President Trump would nominate?—Republicans think it will play better than any alternative in the short term. But they are overlooking longer-term dangers.

A Republican presidential victory at this point seems unlikely. If Trump is the nominee, he will become the face of Scalia’s jurisprudence and its main though ill-informed defender in an election where Republicans invited a judgment from the American people on Scalia’s work. By turning an election they will probably lose into a referendum on Scalia’s jurisprudence, and by allowing that jurisprudence to be linked to Trumpism (as Hillary Clinton will surely do), Republicans threaten to tarnish Scalia’s legacy and undermine the legitimacy of conservative jurisprudence for a generation or longer.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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