Published by The Lawfare Institute
in Cooperation With
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.