WASHINGTON (Gray DC) – It’s become one of the hot button issues of the 2016 election cycle; what kind of justice should be nominated and confirmed by the next president.
Justice Antonin Scalia died suddenly in February while on vacation in Texas. President Obama nominated Judge Merrick Garland shortly thereafter, but the republican led United States Senate has refused to hold confirmation hearings during the presidential cycle.
If Garland is not confirmed, his nomination will expire when President Obama’s term does. The next president will have to make a new nomination. Hillary Clinton has not said whether or not she would re-nominate Garland.
“You don’t want to be measuring the drapes before you move in but it’s also a difficult issue and she probably doesn’t want to commit when there are so many variables,” said Supreme Court expert and litigator Amy Howe.
Garland is considered a fairly moderate judge so some experts believe Clinton will nominate someone more liberal. Still, others believe she may re-nominate him to honor her predecessor’s wishes.
If Clinton chooses a new nominee, it would likely be a person who would overturn Citizens United and be sympathetic to campaign finance reform. Additionally, she will look for someone who would be supportive of reproductive rights.
For republicans who have concerns about Donald Trump’s conservative values, Trump’s list of nearly two-dozen potential picks may calm fears. He has pledged to appoint pro-life justices as well as those who strongly support the second amendment right to bear arms.
Still, much of the decision of who makes it on to the bench will be based on the layout of the senate. If Clinton wins and democrats take the senate, the current republican senate could quickly confirm Garland during the lame duck period over concerns Clinton could come back with an even more liberal nominee once inaugurated. If the republicans keep their majority in a Clinton win, many have pledged to try to keep the seat vacant until the next election.
Texas Senator Ted Cruz, who also recently ran for the republican nomination, noted that there have been instances without nine justices before.
“The constitution does not require nine justices on the bench,” said expert Tiffany Bates of the Heritage Foundation. “The Court continues to work no matter how many justices there are.”
Still, Howe says the Court is slightly behind on the number of cases they’ve agreed to “in part because when you have eight justices instead of nine, it’s harder to come up with four votes to grant review.”
Vice Presidential candidate Tim Kaine has threatened to use the “nuclear option” to change the Senate’s rules if they are stonewalled by republicans.
On the flip side, there is also a chance the net president could nominate more than one justice during his or her term. Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy is 80 and Justice Steven Breyer is 78.
“Several of the justices have already surpassed the average life expectancy age of this country,” Bates added.
Justice Ginsburg has already indicated that she intends to keep her position as long as she is able.