For millions of Americans, Tuesday is Election Day. For Merrick Garland, it is Day 237 in limbo.
In March, President Barack Obama tapped Mr Garland, the chief judge for the US Court of Appeals for the District of Columbia, to fill the high court seat left vacant by the February 13 death of Justice Antonin Scalia. Senate Republicans have refused to consider his nomination, insisting instead that it await the next president.
No US institution has more riding on Tuesday’s election than the nation’s highest court. Along with the debate over Scalia’s seat, the court faces the likelihood of additional age-related retirements, a growing backlog of contentious cases, and the risk that America’s bitter partisanship poisons the judiciary as it has the rest of government.
“This is an election of enormous consequence, probably the most consequential election in my lifetime,” said Donald Verrilli, former US solicitor general. “You have an eight-person court with four-to-four deadlocks on several of the most important constitutional questions before the court last term . . . The longer this goes on, the more the public’s faith in the court as an institution is going to erode.”
At stake on Tuesday is the ideological orientation of the court, now evenly balanced between conservatives and liberals, for the next several decades.
With three justices — Ruth Bader Ginsburg, 83, Anthony Kennedy, 80, and Stephen Breyer, 78 — at or around 80 years old, both Hillary Clinton and Donald Trump have used the prospect of multiple court appointments in the next president’s term to rally their troops.
Mrs Clinton has called for Mr Garland to be confirmed, and vowed to appoint justices who would uphold Roe v Wade, the 1973 decision that legalised abortion. Mr Trump promises to name justices who would uphold the individual right to own guns and would scrap the right to abortion.
The Republican also has suggested that reluctant conservative voters have no choice but to support him for fear of the Democrats. “Even if you can’t stand Donald Trump, you think Donald Trump is the worst, you’re going to vote for me,” he said at an August rally in Ashburn, Virginia. “You know why? Justices of the Supreme Court. If they pick judges, we’re going to end up with another Venezuela, just a bigger version.”
In September, Mr Trump released a list of 21 potential justices, including three women. The list was drawn from Federalist Society and Heritage Foundation recommendations and included one Republican senator, Utah’s Mike Lee, who later called for Mr Trump to quit the race.
This year’s short-handed court became deadlocked over several crucial constitutional issues. In June, the justices split 4-to-4 over a challenge to Mr Obama’s plan to allow up to 5m undocumented immigrants, who were the parents of citizens or lawful permanent residents, to remain in the country. The ruling left a lower court decision in place, but created no legal precedent involving the broader question of presidential power.
The court is slowing its work in other ways. The justices have yet to schedule arguments in three cases that they agreed earlier this year to hear, including a key test of church-state relations, according to Andrew Pincus, a partner at Mayer Brown.
“The fear is they won’t be able to reach a decision,” said Mr Pincus, who has argued more than two dozen cases before the Supreme Court.
Mr Garland’s confirmation prospects hinge on the battle for the US Senate, which must confirm Supreme Court justices. If the Democrats win the presidency and the Senate, Republicans could opt to accept the moderate Mr Garland rather than risk a more liberal appointee from Mrs Clinton.
Still, there may not be sufficient time to schedule a confirmation hearing and hold the vote before the next president is inaugurated on January 20. Mrs Clinton could renominate Mr Garland, who is well regarded by many Republicans, to avoid a fight over a more liberal jurist, several court watchers said.
In recent weeks, several prominent Republicans, such as Senators Ted Cruz of Texas and Richard Burr of North Carolina, have called for GOP obstructionism to continue into a new administration and block any Clinton appointee for years. “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” said Senator John McCain.
An eight-member court would be unusual, though not unprecedented. Since 1970, the average court vacancy was 55 days. But in the 19th century, court seats sat open for more than a year on eight occasions, according to Pew Research. When Justice Henry Baldwin died in April 1844, it took 841 days before Robert Grier replaced him.
If Republicans follow through on their promise to oppose any Clinton candidates, Senate Democrats could respond by eliminating the filibuster for Supreme Court nominations, retiring Senate minority leader Harry Reid recently predicted. Mr Reid’s likely successor, Senator Chuck Schumer, has been less definitive about his plans. But Tim Kaine, the Democrats’ vice-presidential nominee, recently endorsed the idea.
Michael Gottlieb, a former associate White House counsel for Mr Obama, expects Republican leaders to yield. After saying for most of this year that filling Scalia’s vacancy should be up to the next president, they would find it difficult to sustain an indefinite blockade, he says.
“They have to think about some of the institutional interests, the precedent it sets,” says Mr Gottlieb, a partner at Boies, Schiller and Flexner in Washington. “There would come a point at which the American public would say ‘enough is enough’.”
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