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Why Hillary Clinton Refuses to Say Whether Merrick Garland Will Be Her SCOTUS Pick

The Democratic hopeful stays silent on renominating Obama's stalled candidate.

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White House / Flickr.com

Democratic presidential candidate Hillary Clinton has had lots of things to say about the future of the U.S. Supreme Court. "I have a bunch of litmus tests" for potential SCOTUS picks, Clinton has said. Foremost among those tests is the willingness of her judicial nominees to overturn the Supreme Court's 2010 defense of free speech in Citizens United v. Federal Election Commission.

But there is one major future-of-SCOTUS issue on which Clinton has been conspicuously silent. As Bloomberg's Greg Stohr puts it, "there's still a big question she hasn't answered: Would she re-nominate Merrick Garland to the open seat on the Supreme Court?"

Merrick Garland, who most recently served as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, was of course nominated by President Barack Obama back in March to replace the late Justice Antonin Scalia. But Garland's nomination has languished in the Senate ever since, with Republican lawmakers refusing to hold hearings or bring his name to a vote. And Clinton, Stohr observes, "has studiously avoided saying whether she would renominate Garland for the vacancy if it is still pending next year."

Why the silence? One possible explanation is that Garland is not at all the sort of liberal jurist that many of Clinton's supporters would like to see replace Scalia. Remember that the news of Garland's nomination did not exactly set progressive hearts aflutter. The president of the National Organization for Women questioned Garland's commitment to abortion rights, for example, while left-wing pundits complained that it was "extremely disappointing" to see the nomination of more "white men."

Garland's nomination surely came as a disappointment to that segment of the Democratic big tent that still cares about civil liberties. That's because Garland's record, as I've previously described it, "reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power." In other words, Garland is not quite the dream candidate of the ACLU; nor is he the dream candidate of the Black Lives Matter movement.

So it's not really that much of a surprise to find Hillary Clinton keeping quiet on whether or not she'll re-up Merrick Garland's nomination if she wins the election. Clinton probably sees no upside in reoffending the various constituencies that found Garland to be such a disappointing judicial pick in the first place.