Clinton faces tough decision with court pick

Hillary Clinton will face a tough decision on the Supreme Court if she wins the presidency on Tuesday.

The Democratic nominee must decide whether to keep Merrick Garland, President Obama’s nominee to succeed the late Justice Antonin Scalia on the Supreme Court, or move in a different direction.

{mosads}Liberals are ramping up pressure on her to jettison Obama’s centrist nominee and pick a younger and more liberal judge.

They also want Clinton to expand the racial and gender diversity of the court to better represent the constituencies Democrats are depending on this Election Day.

Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, is a 63-year-old white male from Illinois who has won support from Republicans in the past. Despite that support, Senate Republicans have refused to grant him even a hearing since Obama nominated him to the court in March.

Centrist Senate Democrats facing tough reelections in 2018 want to avoid a knock-down, drag-out fight over the court next year and instead focus on bipartisan economic legislation that can become law and give them accomplishments to run on.

Some prominent Senate Democrats, such as Democratic Leader Harry Reid (Nev.) and Whip Dick Durbin (Ill.), say Clinton should stick with Garland and re-nominate him next year if he fails to win confirmation in the lame-duck session after the election.

Clinton has been careful in discussing the Supreme Court vacancy.

In September, said she may pick someone other than Garland. In an interview on the “Tom Joyner Show,” she said that she would “look broadly and widely for people who represent the diversity of our country” in making a selection.  

New York Senator Charles Schumer, who is poised to become the next Senate Democratic leader, has steadfastly refused to say what Clinton should do.

Liberals are seizing on comments by Republican senators to argue that Clinton should go big and tap a judge who can anchor the court’s left for years.

“[Republicans] made it clear they’re going to oppose anything she puts up, and so I think she ought to put up candidates that have two qualities. One, that they’re young and, two, that they represent the jurisprudence that she supports, and I don’t think Garland is either of those,” said Robert Borosage, co-director of Campaign for America’s Future, a liberal advocacy group.

Many Democrats as well as Republicans see the future ideological balance of the court as one of the biggest prizes of the 2016 election, with the next president likely to appoint as many as three new justices.

A Pew survey over the summer found that 65 percent of registered voters said the composition of the Supreme Court would be a “very important” factor in deciding their vote, more important than trade, the environment or abortion.

Nan Aron, president of the Alliance for Justice and an influential liberal voice in Supreme Court battles going back for years, said she’ll back Garland if Clinton chooses to keep him as her nominee.

But she emphasized that there will be a huge confirmation fight no matter who is the nominee and that Clinton should make sure that she feels fully invested in whomever she picks.

“Getting a Supreme Court justice confirmed will be the biggest fight of Hillary Clinton’s life and may be the biggest fight of the first several years of her administration. Whomever she chooses has to be someone she wholeheartedly supports, with every fiber in her body,” Aron said. “She’ll have to put her all into getting this candidate confirmed.”

“If it’s Merrick Garland, so be it, but it’s got to be someone she cares about,” she added. “Someone she can really wrap her arms around.”

On one issue, at least, Garland’s record could make him a tough choice for Clinton.

She said at the second presidential debate that she wants to appoint a justice that would reverse Citizens United, the landmark Supreme Court case that allowed outside groups to flood political races with tens of millions of dollars.

But there are doubts on the left as to whether Garland can be relied on to strike down the controversial 2010 ruling.

He joined a unanimous ruling in SpeechNow.org v. Federal Election Commission in 2010 that allowed unlimited contributions to super PACs, a decision that came after Citizens United.

Richard L. Hasen, a law professor at the University of California, Irvine, speculated in an article earlier this year that Garland might not be willing to overturn Citizens United because it was decided relatively recently.

Another potential strike against Garland given Clinton’s statement in September that she would “look broadly and widely for people who represent the diversity of our country” is the fact that he’s a white man.

Clinton has pledged to appoint an equal number of men and women to her cabinet, evening the gender ratio that traditionally has skewed male.

The high court is another institution that has been dominated by white men. Only three of the eight sitting members are women.

The left is pushing for Clinton to nominate a woman, an African-American, or an Asian-American.

“We have a Supreme Court that’s been dominated by white males throughout its entire history, and it’s time to make sure that we build a Supreme Court that is more reflective of the life experiences of the entire country,” said Charles Chamberlain, executive director of Democracy for America, a liberal advocacy group.

Clinton was out of the administration and not involved in Obama’s selection of Garland, but she may feel some pressure to stick with him purely out of personal compassion.

He has put his life on hold for months to win the job, and his record on the appellate court is widely regarded as first rate.

Garland’s biggest selling point amongst Senate Democrats is that he is viewed as a consensus candidate who can attract Republican support. But liberals now argue the calculus has changed.

“If there‘s anybody who thinks it’s possible for Hillary Clinton to have less of a Supreme Court fight next year, they’re delusional and living in a fantasy land,” Chamberlain said. “The Republicans plan to block whomever Hillary Clinton nominates to the Supreme Court, period.”

Liberals say if a court war can’t be avoided Clinton should get as much as she can from the political capital she’ll have to spend.

These advocates point to recent comments by Sens. Ted Cruz (R-Texas) and Richard Burr (R-N.C.) floating the possibility of keeping the seat held by Scalia open indefinitely.

“If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court,” Burr told a group of supporters late last month.

Cruz argues there’s long precedent for operating the court with fewer than nine justices.

Sen. John McCain (R-Ariz.) predicted earlier this month that Republicans would stand firm against any of Clinton’s nominees, though an aide later walked back the comment.

This tough talk from Republicans has undermined one of Garland’s most politically appealing attributes, his past support from the GOP side of the aisle.

Obama nominated Garland in March as a consensus candidate whom the Senate approved to the DC Circuit Court of Appeals with 76 votes.

Sen. Orrin Hatch (Utah), a former Republican chairman of the Judiciary Committee, called Garland a “consensus nominee” in 2010 and pledged to help him muster support if nominated to the Supreme Court.

But after Obama tapped Garland, Hatch reversed himself and supported his leadership’s decision not to give the nominee hearings or a vote.

Allie Bice contributed reporting.