When Antonin Scalia, the longtime conservative stalwart on the Supreme Court, passed away this past February, I confidently predicted that the vacancy on the high court would be the preeminent, overarching issue of this year’s presidential election. Needless to say, I was wrong. For one thing, I did not think that Donald Trump would actually be nominated.
But the minimization of this issue is still, frankly, astounding. In a completely unprecedented move, the Republican-controlled Senate has refused to hold hearings on the nomination of Merrick Garland, President Obama’s nominee to replace Scalia. Yet even among Republicans, the battle over the Supreme Court has been relegated to second-tier status. Most shamefully, Garland was not even mentioned at the Democratic National Convention.
Assuming he turns out to be a reliable liberal on the Court, much like others in similar circumstances before him, Garland could spell the end of the line for this country’s barbaric use of capital punishment. He could defend Obama’s immigration policies and uphold the Affordable Care Act, including the contraceptive mandates. He could be a fifth vote on the court to overturn the disastrous Citizens United decision, which eviscerated campaign finance restrictions. Arguably more important, until Scalia’s death, many mainstays of American life have been holding on for dear life by a single vote on the Supreme Court.
Only five justices support the right of a woman to obtain an abortion, the central holding of Roe v. Wade. Only five support the right to marry, regardless of sex. Only five support the constitutionality of the Affordable Care Act. Only a bare majority similarly supports this university’s extremely limited use of race-conscious admissions.
That there have been no developments on this issue of late is, in and of itself, newsworthy. It is befuddling, to say the least. The ideological direction of the Supreme Court, and therefore the entire constitution, hangs in the balance. The possible upsides of a liberal majority on the Supreme Court, another era of Earl Warren then William Brennan, Jr. — except, this time, Ruth Bader Ginsburg then Sonia Sotomayor — leading the country forward, are limitless.
There is no excuse for Hillary Clinton — and granted, the entire Democratic establishment — to not place this issue front and center. Garland’s nomination has been stymied by an inconceivably contemptible opposition. While voting down nominees is not rare, refusing to even engage them is unprecedented. If the Senate actually felt confident Garland was not a good nominee, they would hold hearings and then reject him.
But they can’t do that, because Garland is one of the most qualified people ever nominated for the Supreme Court. Garland is the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, which is essentially the Supreme Court’s JV team. When he was nominated for his current position in 1995, a majority of Republican senators voted for his confirmation. If hearings were held, he would likely be confirmed. It’s that simple.
This country is on the precipice of making one of the most significant changes to our constitution — and our society — in decades. Let’s not squander it. Clinton needs to begin giving Merrick Garland and the controversy over his immobile confirmation battle the attention it deserves.
Horwitz is a first year law student from Houston. Follow him on twitter @nmhorwitz