Obama has every right to appoint Merrick Garland as Justice Scalia’s replacement on the US Supreme Court. The fact that he is struggling to do so shows why the court is not fit for purpose.

Article III of the US Constitution states that “the judicial power of the United States, shall be vested in one Supreme Court.” In recent years however, it appears that the SCOTUS has become far more political than judicial. The controversy provoked by the death of Antonin Scalia as to whether President Obama has the constitutional right to appoint a replacement justice has thrown the politicisation of the SCOTUS into the limelight and led many to question whether the third branch of the US government is truly as neutral as it is made to seem.

The SCOTUS is inherently political due to the powers of the president and the Senate to appoint the justices. The president chooses justices whose judicial philosophies mirror their own and will, as a result, rule in favour of their desired outcomes. The Senate’s role in the process adds a further layer of politicisation as the party who command a majority wield the power to reject or confirm the president’s nominee. Therefore, when a justice takes up their place on the court their neutrality is already compromised. Of course the justice does not have to follow the jurisprudence assumed of them, as was the case with Eisenhower’s nominee Earl Warren, but more often than not, the justices conform to the president’s expectations.

Antonin Scalia was a strict constructionist – a justice who did not like to find new meanings in the constitution – and applied a high degree of judicial restraint in his rulings; alongside the four other Republican appointed justices, he formed a conservative majority on the court. This conservative majority explains why the Republican Party are so determined to delay the appointment of another Democrat-nominated justice. Obama has so far appointed two liberal justices, Sonia Sotomayor and Elena Kengan, so if his appointment attempt succeeds the court will become dominated by liberal justices – an undesirable outcome in the eyes of the Republican Party.

Obama is limited by the Republican majority in the Senate as in order to confirm his appointment a simple majority is required, and the Democrats are seven votes short. Unless in some miraculous turn of events the Republican senators change their minds about meeting Obama’s nominee, Merrick Garland, the chances are that the next president will appoint Scalia’s replacement. Such a political battle to appoint a new justice undermines the judicial nature of the court and suggests that the third branch of government is de facto political.

Although it is highly unlikely that Obama will succeed in appointing Scalia’s replacement, it is clear that Merrick Garland is a pragmatic choice. A famously moderate judge, Garland appeals to both Republicans and Democrats; if the vacancy had arisen six months earlier Garland’s chances of becoming a Supreme Court justice would have been decidedly better. Unfortunately for Obama, the timing of Scalia’s death created an unprecedented situation which the Republican Party took advantage of.

With seven months until the presidential election both parties want to secure a majority on the Supreme Court and the Republicans have the tools at their disposal to scupper their opposition’s plans. If the Republicans win the election they are fully equipped to appoint a new conservative justice due to their senate majority. However, if the Democrats win, the Republicans could not continue to delay the appointment for the next four years. This creates a difficult situation for the Republican Party.

At the moment the Democratic nominee is a moderate who could potentially take over from Justice Kennedy as the swing; however Clinton or Sanders’ nominee is likely to be far more liberal and judicially active. Another activist justice would create a clear liberal majority and this could lead to the passage of many controversial reforms—such as extended abortion rights and an expansion of Obamacare—that the conservatives are staunchly opposed to.

The Republicans and the Democrats are unlikely to ever completely agree on a suitable replacement for Scalia but it seems that Merrick Garland is the best chance Obama has at appeasing the conservative opposition. The only thing that is clear amid the smoke of this political battle is that whatever happens in November will dramatically shape both the Supreme Court and American society for many years to come.

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