SCOTUS selection in play during 2016 election


By
 in

Presently, it is still uncertain who will claim victory in the November presidential election. Regardless of who wins, millennials stand to play a substantially larger role in this election cycle than those in years past.

In order for millennials to vote intelligently and in line with their interests beyond presidential policy, an often overlooked factor of American government must be examined: the ability of the President to nominate Supreme Court Justices. The Justices of the Supreme Court have immense power given that they must deliberate over issues that touch upon the bedrock of American conceptions of rights and government. Not only do they rule on core constitutional issues such as free speech, right to privacy and equal protection of the law, they also are appointed for life. Their opinions will hold sway for decades after their appointment. As such, if millennials desire to influence the composition of the Supreme Court in the coming years, they ought to pay close attention to the Supreme Court nominees that both candidates are likely to bring to the consideration of the Senate.

Republican presidential nominee Donald Trump has released a short list of judges that he believes will be assets to the composition of the Supreme Court. While they hail from several states and disparate jurisdictions, Trump’s list of judges share with each other their professional experience and general conservatism. This is unsurprising, given Trump’s own conservativism and his praise of the late Justice Antonin Scalia, whose originalist approach to the terms of the Constitution was exceedingly well-known and respected among American conservatives. While they have their individual distinctions and quirks, Trump’s nominees appear relatively homogenous in their judicial philosophy.

Democratic presidential nominee Hillary Clinton, on the other hand, has not published a similar short list of likely nominees. Nonetheless, there is consensus about who is likely to be on such a list, whether or not it is public knowledge. Perhaps most obviously positioned to become a Supreme Court Justice is current federal judge Merrick Garland. Garland heads the United States Court of Appeals as Chief Judge. Garland’s record as a judge has been widely described as moderate, but his more nuanced positions may be of more interest to millennials.

Garland’s position on the First Amendment is of chief importance; Garland has presided over several cases involving Freedom of Information Act requests, and has overwhelmingly supported more transparent government and freedom of the press. These are qualities in government that millennials tend to support. The next consideration in favor of many millennials is present in Garland’s few cases involving environmental regulation. In these cases, Garland has appeared to be generally in favor of government environmental protection. Finally, Garland appears to be sympathetic to plaintiffs suing under whistleblower laws, which is another boon to those who favor more accountable government.

However, Garland has some positions that may run counter to conventional Democratic and millennial objectives. Garland determined in 2003 that the federal judiciary could not hear cases filed by Guantanamo Bay detainees. His position was overturned by the Supreme Court in its 2008 Boumediene v. Bush decision, but his deference to the federal government in criminal matters may still be unsettling to some on the left. Garland is nonetheless the most likely candidate, given that he has already been nominated and is an easier pill to swallow for Republicans than some of Clinton’s other potential nominees, like the comparatively liberal ex-public defender Judge Jane Kelley of the 8th Circuit Court of Public Appeals and Justice Goodwin Liu of the California Supreme Court.

Clinton’s likely nominees are not all hardline liberals, however, in contrast to Donald Trump’s list of conservative judges. Judge Sri Srinivasan of the D.C. Circuit, another very likely nominee from the Clinton camp, is not clearly left-wing. His decisions suggest an even-handed temperament that may lean left in only some cases. Judge Paul Watford of the Ninth Circuit fits a similar description, and Judge Patricia Millett of the D.C. Circuit is also not terribly left-leaning. These judges, if nominated, present choices that would be much easier for Senate Republicans to agree with if they come away from the election with a majority in the Senate. And given that it would be Clinton nominating these judges, Senate Democrats would be unlikely to oppose them. These potential Supreme Court Justices stand to advance left-leaning objectives in the Supreme Court, even if they are not the sort of spirited liberals that some Democrats may want to see on the bench.

Given that most millennials are Democrats or describe themselves as Democrat-leaning, Clinton’s likely nominees are important for them to get to know. Clinton and her judicial objectives may not represent the whole of the millennial population, but for a substantial number of them, those potential are their best bet for representation in the federal judiciary.