President Obama’s nominee for the open seat on the Supreme Court might be the best conservatives can get and could be confirmed by reluctant Republicans if Hillary Clinton wins the White House, Kansas Solicitor General Stephen McAllister said Friday.
McAllister said Senate Republicans, who have vowed to block Obama and let the next president appoint a justice to replace the late Antonin Scalia, might change their minds if Donald Trump loses to Clinton.
And they might take the opportunity to confirm Obama’s nominee – Merrick Garland, chief judge of the District of Columbia Court of Appeals – between Election Day in November and Clinton’s inauguration day in January, he said.
He (Merrick Garland) is well-respected and probably as moderate a nominee as the Republicans could hope for. Stephen McAllister, Kansas Solicitor General
“He is well-respected and probably as moderate a nominee as the Republicans could hope for,” McAllister said. “The Republicans, if she wins, and Garland hasn’t been withdrawn, might want to approve him right after Election Day because he’s probably better than anybody they’re going to get from Mrs. Clinton.
“I suspect if Mrs. Clinton wins, Garland probably won’t be her nominee and particularly not if the Democrats win the Senate back. … She’s going to want someone much more liberal and aggressively so.”
Clinton leads Trump by 4.7 percentage points in RealClear Politics’ average of national polls.
Trump has hailed the conservative Scalia as “a remarkable person and a brilliant Supreme Court justice” and released a list of 10 nominees he’d consider if he wins the presidency.
“Most of the people are pretty well-known and pretty well-respected, certainly generally much more conservative in nature,” McAllister said.
McAllister, the E.S. & Tom W. Hampton Distinguished Professor of Law at the University of Kansas, spoke Friday to the Wichita Pachyderm Club.
In addition to his teaching duties, McAllister serves as solicitor general of Kansas, representing the state on federal constitutional issues at the Supreme Court and in state matters such as the ongoing school finance case at the Kansas Supreme Court. Prior to joining KU, McAllister clerked for two Supreme Court justices, the late Byron White and current Justice Clarence Thomas.
In addition to handicapping Garland’s chances, McAllister said Scalia’s death in February has already changed the court’s direction and his replacement could affect hot-button issues for years to come, including:
▪ Gun rights: A Clinton appointee could make a majority to reverse the court’s earlier finding in the District of Columbia v. Heller case, where the court ruled 5-4 that the right to keep and bear arms is an individual right and not dependent on an “organized militia.” “I would think with his replacement Heller would be at risk,” McAllister said.
▪ Capital punishment: McAllister said Justices Stephen Breyer and Ruth Bader Ginsburg are moving toward questioning whether the death penalty is constitutional under any circumstances. A like-minded justice could swing the court more toward that position, he said.
▪ Abortion: After Scalia’s death, Justice Anthony Kennedy appears to have moved left on the issue, writing the majority opinion striking down a Texas law that set high standards for abortion clinics and required providers to have admitting privileges at a nearby hospital. If Kennedy stays on that side, “it may not matter” who replaces Scalia because the abortion-rights bloc would still have five of nine justices, McAllister said.
▪ Religious rights: In 2014, Scalia joined a 5-4 majority in Burwell v. Hobby Lobby, upholding a Christian employer’s right to exclude contraceptive coverage from the employee health plan. But in Employment Division v. Smith, 26 years ago, Scalia wrote that the government didn’t have to make religious exceptions in neutral laws, McAllister said. “Scalia actually being absent on that question might open the door for potentially greater protection of religious rights,” he said.