(NY Times) – Even though Merrick B. Garland is considered a centrist jurist, his appointment to the seat left by Justice Antonin Scalia would result in a historic change in the court.
There are two ways to think about the change. One is to compare Judge Garland, President Obama’s nominee, with Justice Scalia. The second is to think about how Mr. Garland might shift the court’s balance of power. His addition would make the justice at the center of the court more liberal than at any point in nearly 50 years.
The biggest ideological shift in modern history occured when George H.W. Bush nominated Clarence Thomas to replace Justice Thurgood Marshall.
The seat once occupied by Justice Scalia would experience a significant shift if the Senate confirms Merrick Garland, who is ideologically similar to President Obama’s previous nominees.
A Democratic-controlled Senate confirmed Ronald Reagan’s nomination ofAnthony M. Kennedy in 1988.
The nomination of John Paul Stevens by Gerald R. Ford was a major conservative shift, but Justice Stevens drifted to become the most liberal justice on the court by his retirement in 2010.
In recent years, many justices have timed their retirements to ensure that their successors would be picked by a president who shares their political and judicial values. But Justice Scalia, the court’s third-most conservative justice by a widely accepted measure, is far across the ideological spectrum from President Obama’s previous two selections for the court.
We don’t yet know exactly how Mr. Garland would vote if he joined the court. But scholars believe that he will be substantially more liberal than Justice Scalia was. According to a ranking of Supreme Court and appeals court judges, Mr. Garland is expected to be ideologically similar to Elena Kagan and Sonia Sotomayor, President Obama’s previous picks for the court.
Ideological shifts of large magnitude have been rare. And when they’ve occurred, they’ve led to drag-out fights for Senate confirmation. Consider the battle over Clarence Thomas’s nomination. Justice Thomas replaced Justice Thurgood Marshall, which was the largest ideological shift in the country’s history.
More recent appointments have replaced departing justices with people with similar ideology. There was almost no ideological difference between Chief Justice William Rehnquist and Chief Justice John Roberts, who replaced him. Justice Sotomayor was a nearly perfect ideological match for Justice David Souter.
If Mr. Garland is confirmed and votes in line with scholars’ expectations, he or Justice Stephen G. Breyer would become the new median, making the center of the court more liberal than it has been in many decades.
But the replacement of Justice Scalia with an Obama pick could alter the court far more than the replacement of Justice Marshall with Justice Thomas. Because of the current composition of the court, the replacement of Justice Scalia with a more liberal justice would alter the center of the court substantially.
Supreme Court scholars often talk about the “median justice,” who can help secure a five-vote majority in controversial cases. Currently, that median justice is Justice Anthony Kennedy, whose voting record has been ranked as weakly conservative in recent years — and as weakly liberal in the last term.
If his past record is predictive, and Mr. Garland earns confirmation and votes with the court’s current liberal bloc, the new median justice will become Stephen Breyer, the most liberal median justice since 1937, when the scholarly rankingsbegan. If Mr. Garland is more conservative than Justice Breyer but more liberal than Justice Kennedy, Mr. Garland would become the new median, the most liberal in nearly 50 years.
“For the first time in decades, the court might swing to a Democratic court,” said Lee Epstein, a professor of law at Washington University in St. Louis who measures and studies voting patterns on the court. “It’s a major moment.”
http://www.nytimes.com/interactive/2016/02/18/upshot/potential-for-the-most-liberal-supreme-court-in-decades.html?_r=0
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