Duke professor: Supreme Court vacancy ‘huge’ in 2016 election

Neil Siegel is a professor of law and professor of political science at the Duke Law School. In 2003, he clerked for Associate Justice Ruth Bader Ginsburg at the U.S. Supreme Court and served as special council to then-Sen. and current Vice President Joe Biden during the confirmation hearings of current Justices John Roberts and Samuel Alito. The Chronicle’s Rachel Sereix spoke with Siegel about the next Supreme Court nominee and partisanship in the Court.

The Chronicle: Do you believe that the Republicans’ argument that a Supreme Court nominee should be chosen after the next president is elected is constitutionally justified?

Neil Siegel: I do not. A president is elected to a four-year term, and our current president has about a year to go. The best understanding of historical practice is seen by what the Republicans in the Senate are doing. Never before has one party said that they are not going to categorically consider any nominee regardless of the nominee that the president would put up. In the last 100 years, we have not seen a case similar to what the Republicans are doing now. The principle that they are stating is that ‘the American people should decide.’ They simply want a Republican to fill the vacancy—this is not principle, this is partisanship. People are trying to maximize partisan advantage. What I am worried about is a situation where we cannot confirm anyone unless the same party controls both the White House and the Senate. I think that this would be destructive. The president is under a constitutional obligation to nominate someone. It says ‘shall’ in the Constitution, not ‘may’ or ‘can,’ and it seems to me that the Senate is under a conventional, not a constitutional, obligation to consider the nominee. It is just a considerate departure from past practice, and it is symptomatic of partisanship on steroids that defines the times in which we are living.

TC: What do you think are the main characteristics that make Chief Judge Merrick Garland a qualified nominee?

NS: He is the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, which is the second most important court in the land next to the Supreme Court. He is one of the most experienced Supreme Court nominees ever. He has served on the D.C. circuit court for many years and before that as a federal prosecutor, and he has earned high praise across party lines. I cannot think of anyone more plausibly confirmable for the position. He is a moderate centrist and follows precedent to the T as far as I know. His colleagues love working for him and feel very respected by him on both sides of the aisle. He has everything that you would want professionally and temperamentally from a nominee. From the Republican perspective, he is more moderate than many possible nominees, and he is also older—he will be there less.

TC: Do you believe that Garland’s centrist views can provide a sense of balance to the Supreme Court?

NS: He is clearly to the left of Justice Scalia, but Scalia was one of the most conservative judges in American history. He is also to the right of any other nominees that the president might have considered. I don’t know about a sense of balance—he would move the Court to the left but not nearly as to the left as another Democratic nominee might. In my publication in The Hill entitled, ‘The American people will decide the Supreme Court’s future anyway,’ I argue that there is a factual assumption that both sides are making that I think is false.

The Republicans are talking about flipping the Court from conservative to liberal for the next generation. They are saying this to help make the claim that they have a special warrant to do something extraordinary which is not even considering a nominee. The Democrats as far as I can tell have not been disputing this assertion that this is a really big deal and could flip the Court. Justice [Ruth Bader] Ginsburg is 83, Justice [Anthony] Kennedy is 79, Justice [Stephen] Breyer is 77—the idea that this is going to flip the Court for a generation is simply false. Justice Ginsburg is not going to remain on the Court for another generation and neither is Justice Breyer. So I think it is much more likely than not that we are going to have turnover over the next four years. The conflict is that the principle of the Republicans is not the one that they say they are following. What you are left with is partisan advantage which has come in the form of not letting Democrats fill the seat. That is a new low in terms of obstruction and dysfunction.

TC: What are the next steps for Senate Democrats and President [Barack] Obama to successfully nominate Chief Merrick Garland?

NS: This is so extraordinary that I don’t know. Typically the nominee would prepare for hearings and talk to senators on both sides, but that doesn’t seem to be happening. I don’t know what the next steps are. They have to persuade Senate Republicans to at least consider the nominee and so far, they just won’t. It is more likely than not that Garland will not get a hearing, let alone be confirmed. The most likely scenario is if the Democrats win the election with Hillary Clinton being the presumptive nominee, there is going to be a lame duck session after the election in November. The Republicans are going to be faced with confirming Garland, or Hillary Clinton will nominate someone possibly more liberal. There is a possibility that Republicans will forget about what they said about the American people. If the Democrats have both the presidency and the Senate, I suspect that they will confirm Garland and deny Clinton the opportunity to nominate someone much more liberal. It will be quite contradictory to say that the American people shouldn’t decide—we can decide this now.

TC: What do you believe is the primary agenda of Senate Republicans to block Garland’s nomination?

NS: I think that they want to make it as likely as possible that a Republican president will nominate a Supreme Court justice. There is also an irrational hatred of the president, and anything they can do to stop him, foil him and deny him a victory is what they will do even if it is not in their best interests.

TC: Do you think the vacancy of a spot on the Supreme Court will mobilize voters during the election?

NS: I think it will. I think this election is about much bigger things. I think it will be more in their minds than usual, and it has turned into a major issue in the election since this particular vacancy is huge, and the Republicans are saying that the American people should decide this. The courts mobilize voters, more so the Republican base than the Democratic base. Even for the Democratic base, this is a big deal, and it is perceived to be a bigger deal than usual due to the unanticipated passing of Justice Scalia and the possibility that as many as three judges will step down over the next four years. 

Correction: This article was updated for clarity to note that Siegel said that the Senate has a conventional obligation to consider the nominee, not confirm the nominee, that Garland has received praise across party lines, not along party lines and clarify that Garland previously served as a federal prosecutor. The Chronicle regrets the errors.