Texas Tech Law Professor Calls President Obama’s Supreme Court Nominee a “Wise Choice”

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Wednesday President Obama announced his decision to nominate Merrick Garland, 63,  to the Supreme Court. Garland is the Chief Judge for the Washington, D.C. appeals court. Garland was confirmed in 1997 after being appointed by president Bill Clinton.  He also served as a clerk for Justice William Brennan.

As a federal prosecutor,  Garland led the case against Oklahoma city bomber Timothy McVeigh.  The White House also noted that Garland has more federal judicial experience than any other Supreme Court nominee in history. 

“I think on a lot of political grounds, it was a wise choice,” said Professor Arnold Loewy, George Killam Chair of Criminal Law at Texas Tech University. Loewy has taught and studied the Constitution and the Supreme Court for over five decades. He also teaches a Supreme Court seminar at Texas Tech, in which law students conduct simulated Supreme Court sessions. During his career in law, he has also met many of the living justices, though he’s never met Garland. 

“Sometimes, for Supreme Court appointments, the less well-known the nominees, the better their chances of being appointed,” Loewy explained. 

Many people from across the aisle have offered praise for Garland’s skill as a judge and as a thinker. 

“I think it’s a sensible choice, first of all to the extent that there could ever be a 10th Supreme Court justice, it would be the Chief Judge of the D.C. circuit,” Loewy said. “[Garland] is obviously experienced,  I do not know much about his record, I think his experience will help. I think his age will actually help, because if Obama nominated a 50-year-old, I think there will be a lot of argument–you’re trying to get 30 years from a justice in your last term?  It’s harder to make that argument when you’re talking about a judge in their 60’s.”

Loewy said that President Obama is following through with his constitutional obligations in making this appointment. 

“I would highlight the fact that the Constitution is written in terms of duty not option,” Loewy said. “It doesn’t say ‘may nominate’, it says ‘shall nominate’, and typically, grammatically when you’re talking about the third person use of the word ‘shall’ it’s usually a particularly strong imperative.” 

He said that as he reads it, the writing in the Constitution implies that the president must act to make an appointment in a reasonable amount of time.

“So it’s clear that [President Obama] is required to do it, it’s also clear that he’s elected for a four year term when he’s elected, however much people may not like that. And there’s huge value in not having a lot of 4 to 4 decisions on the Supreme Court,” Loewy added. 

Loewy believes that having an even number of justices on the court will create confusion with future cases.

“Now in the Texas Affirmative action diversity case at UT will probably wind up at 4 to 3 [decision] because Kagan will disqualify herself, that won’t be as big of an issue. But all of the other cases will be 4 to 4 unless and until somebody else is appointed to join in, and I don’t think that’s a good thing, just cause of the math, I think 7 judges would be as good as 9, that’s just what we wound up with,” Loewy clarified.

He explained that according to constitutional procedure, now that Garland has been nominated, the Senate should assemble a committee to interview Garland and hold hearings to decide if Garland is qualified. 

Some Senate Republicans have dug their heels in, saying they will refuse to fill a vacancy on the court, in hopes that the next president will fill the vacancy instead. Upon hearing about Garland’s nomination, Senate Majority Leader Mitch McConnell,  reiterated that he won’t stand for a hearing for any nominees to the Supreme Court during the rest of President Obama’s term in office.  In McConnell’s opinion, filling the vacancy on the court could dramatically change the court’s direction; he feels a nomination should wait until the next president’s term. 

Do these objecting senators have the right to block the nomination? Loewy says, yes, they do.

“If you mean in pure, raw, naked power that no one can bring a lawsuit to compel them to act, yes they can do that,” he said. “It is worth noting that it’s the same Senator McConnell though who urged the Senate to support Bush nominees in his last year, highlighting that the new president is still the president and it’s still his job to make nominees.”

Loewy also noted that denying hearings for Garland may also come at a cost to Republicans. He explained that while there’s a chance a the future president may nominate Garland anyway, if the future president is a Democrat, the nominee could be someone far more liberal than Garland.

Loewy added that if Donald Trump, Ted Cruz or John Kasich  become president and the Senate still hadn’t made an appointment, each would likely appoint someone new upon entering office.

The debate on how to proceed with the vacancy on the court, deserves serious consideration, because the same debate may occur again soon, Loewy said.

“Within the next three years, three justices will be at least 80 years old and may consider retiring soon, leaving more vacancies on the court,” he said.

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