by David Lesch, Esq.


March Madness.  A time to predict the final four.  Everyone believes they can see the future and eagerly place their teams in the final brackets.  But seldom do we pick the four that make it through the end of March unscathed.   


When President Obama nominated Judge Merrick Garland to the Supreme Court I immediately began predicting.  It is always an exciting time when a vacancy opens for the Supreme Court of the United States as the legal profession puts its best and brightest on display.  And surely Judge Merrick Garland has the credentials.  Harvard educated, prosecutor, federal judge with a stellar record.    But just what kind of Supreme Court judge will Mr. Garland be?  Conservative?  Liberal?  


The general consensus believes him to fall into the “moderate” category.  Democrats have been eager to promote the nominee since he was confirmed to the Washington D.C. Circuit Court in 1997.  Although our current President chose not to consider Judge Garland for the 2009 and 2010 vacancies, he was always close the top of the list.  But what does it mean to be a “moderate”?  


Many would think this suggests that Judge Garland sits in the middle of the judicial spectrum when it comes to decision making.  However, his views on some of the highest profile issues the Supreme Court tackles is actually a mystery and that leaves many advocacy groups on both sides of the fence scratching their heads.  


“Judge Garland does not have a public record on reproductive rights and Senate Republican obstruction denies all of us our right to know where this nominee stands on core constitutional questions of women’s privacy, dignity, and equality,” NARAL Pro-Choice America president Ilyse Hogue has said in a statement.  In addition, the Rev. Barry Lynn, the Executive Director of Americans United has stated “Judge Garland does not have a clear record on the issue of Separation of Church and State.”Rev. Lynn stated, “We hope that more information will be revealed about his positions as he proceeds through the vetting process.”  

Because it is almost impossible to remove a Justice once appointed, it is important to go through great lengths to ensure that the nominee is a justice that has some predictability.  But predicting the future ideology of any nominee is not recommended.  Interestingly, research has shown that a president can reasonably expect that a justice they appoint will behave in line with their expectations during the justices’ first term in office.  But ideological drifts can and do occur at the expiration of this first term.  And the shifts become more dramatic as time passes by.


That is precisely why a “moderate” is so dangerous.  Does anybody really know where the drift will head, left or right?  Obviously the President and his supporters hope that Judge Garland could shift the Court to be more liberal.  


With Justices Thomas, Alito, and Roberts anchoring the conservative wing, and Ginsburg, Kagan, Sotomayor and Breyer anchoring the liberal wing, most decisions –if not all– rely on the thoughts of Justice Anthony Kennedy.  Justice Kennedy has leaned slightly to the right, but only a small fraction of his decisions can be considered more conservative than not.  Judge Garland can be the swing vote the liberals need.  When commentators usually describe ideological changes on the Court, they often speak of those who are more liberal, the Justice Blackmun’s and the O’Connor’s.  The analysts seems to suggest that if a justice moves it always a turn to the left. But this is not always true.  


Justice Scalia, whose seat is the very vacancy that would be filled, grew consistently more conservative with time.  So too, has Justice Thomas.  That is why a “moderate” nominee for the Supreme Court is so risky.  Certainly, if Judge Garland is confirmed he could tip the ideological balance to create the most liberal Supreme Court in fifty years.  


But if he moves the other way, he will be responsible for edging the U.S. Supreme Court in a conservative direction. And the Democrats may not get another chance to tip the scales in their favor so dramatically again.  That is what makes this nominee so risky and yet so exciting at the same time.   


Let’s stop the obstruction and let the process begin.  I’m eager to make my prediction. 


Todays Verdict_David LeschDavid P. Lesch is an attorney and host of ‘Today’s Verdict with David Lesch‘ on Bronxnet. Today”s Verdict airs Tuesday nights at 6:30pm, Cablevision channel 67, Fios channel 33. On Facebook and Twitter @DavidLesch.

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