by David B. Rivkin, Jr., and Lee A. Casey, USA Today, March 16th, 2016
President Obama has announced Judge Merrick Garland, of the United States Circuit Court for the District of Columbia, as his choice to replace the late Justice Antonin Scalia on the Supreme Court. Although Judge Garland is certainly a credible candidate for the court, the Senate should postpone consideration of his nomination until after the new president takes office in January 2017. This has nothing to do with Judge Garland, but is the indispensable measure to protect the Supreme Court’s institutional legitimacy.
Scalia’s seat must be filled, but there is emphatically no constitutional timeline that either the president or the Senate must follow in making a new appointment. If that process is undertaken now, the nominee will for all intents and purposes become a “candidate” in this election and the Supreme Court — and by extension the federal judiciary in general — will be further politicized with concomitant damage to the legitimacy of the only unelected, and emphatically non-political, branch of the federal government.
There is little doubt that the electorate, left, right and center, already harbors deep doubts about the efficacy, legitimacy and even good will of all governmental institutions and that the Supreme Court’s own standing has been steadily undermined by relentless attacks on its decisions from all parts of the ideological spectrum. Although the court remains more popular than Congress and about as popular as the president, at the same time it is a counter-majoritarian institution and, as a result, its legitimacy is inherently far more brittle than that of the elected branches of government. Read more »