President Barack Obama has nominated Merrick Garland to serve on the Supreme Court. Before I get too far into discussing Garland, I just want to revisit what I said back when Antonin Scalia died. After I got the news and heard the Republicans say that they wouldn’t consider a successor until after the next president is inaugurated, I took a night to think about how the president might overcome their resistance. This is what I came up with:
Having spent a night to think about this, I can only envision two possible ways to overcome this visceral resistance on the right to any nominee the president might put up.
The first idea probably won’t work, but it involves putting forward someone who is advanced enough in age that they’re actuarially unlikely to serve for very long on the bench. To give two examples from the DC Circuit Court of Appeals, President Obama could pick someone like David Tatel or Merrick Garland. Both were appointed to the DC Circuit by Bill Clinton. Garland, who is 63, has been seen as a compromise choice in the past. Frankly, he’s probably not old enough to comfort the Republicans. Tatel, however, is soon to be 74 years old. He’s also been blind since 1972 because of retinitis pigmentosa. He’s an accomplished man and a sympathetic figure, and he’s only about five years younger than Scalia was when he died. While he’s known for fighting school segregation, which is kind of like being an employee of ACORN or a member of MoveOn.Org, it might be worth it to the Republicans to have Obama appoint a 74 year old instead of having President Hillary Clinton appoint the 48 year old Sri Srinivasan early next year.
To be honest with you, though, I am almost certain the Republicans would reject this kind of overture. The heat from their base is too hot.
The only promising way around this heat is to go straight to the trump card, which is the clubbiness of the Senate itself. In other words, the president could appoint a sitting senator to the Court.
I thought Amy Klobuchar would be the best choice if the president followed the second strategy, but he chose the first.
So, remember, part of the reason that Garland is a compromise choice is because he’s fifteen years older than Sri Srinivasan. If he lives no longer than Scalia, he’ll only be on the Court for fifteen years, whereas Srinivasan would be on the Court until 2046. Do the Republicans want to look that gift horse in the mouth?
Now, you’ll hear plenty about Garland’s credentials: National Merit Scholar, valedictorian from Harvard College, a J.D. magna cum laude from Harvard Law School, clerked for Supreme Court Justice William J. Brennan, Jr., served as Special Assistant to the U.S. Attorney General and Deputy Assistant Attorney General in the Criminal Division of the Justice Department.
You’ll also hear stories about how back in 2010, after Justice John Paul Stevens retired, Republican Senator Orrin Hatch of Utah recommended Garland as his replacement and said “I have no doubts that Garland would get a lot of [Senate] votes. And I will do my best to help him get them.”
Here’s what I said at the time:
The three names currently in the mix are solicitor general Elena Kagan, Judge Diane Wood (7th Cir.) and Judge Merrick Garland (D.C. Cir.). The Republicans would not fight Garland, as they see him as the most acceptable possibility. But none of these judges are ideologically as far left as Stevens.
They wouldn’t have fought Garland back in 2010 because they considered him moderate and acceptable, but they’ll fight him today because they’re more radicalized and because Garland, regardless of his reputation for moderation, would tilt control of the Court away from the conservatives.
I anticipate that you’ll hear disappointment from liberal circles that Obama tapped a moderate who is in his sixties. He’s Jewish, but some people were hoping for something unprecedented like the first Asian Justice, or a black counterbalance to Justice Thomas, or a woman to bring the Court more into gender equity. Certainly, progressives were hoping for a more progressive voice. But, the Republicans do control the Senate and they should reasonably expect the president to nominate someone in the middle.
What’s not reasonable is to reject a nominee just because they don’t feel like confirming any Justice.
And that’s what this pick is going to highlight.
But, the DEMOCRATS do control the Senate and they should reasonably expect the president to nominate someone in the middle.
Like that ever happened.
Basically happened with Anthony Kennedy.
After the Bork War, who garnered even Republican nays.
Funny how you cite a war to suggest the absence of a war.
Yes, in the best of all possible worlds, but not required by the rules of eleven-dimensional chess.
Well, no, we haven’t had a Republican president nominate a Justice to be confirmed by a Democratic Senate in 25 years. If it happened today the Republican couldn’t nominate anybody he wanted, although it’s true the Democrats are actually concerned about their Constitutional responsibilities and wouldn’t blow off the vote.
I’d rather the court stay at 8 than have Garland win the votes necessary to be seated if we judge his record. He’s to the right of Breyer on criminal issues, privacy, and the fourth amendment. Roll the dice on winning the Senate in November, says I.
What sources are you relying on? I’d like to read them.
Lame duck Republicans can always approve him if Hillary wins…
Weak move, imo. Who needs another squish.
wing of the court
http://www.nytimes.com/interactive/2016/03/16/us/politics/garland-supreme-court-nomination.html?_r=0
Breyer is also on the liberal wing of the court. Breyer also sucks on issues of executive power, criminal justice, privacy, and the fourth amendment.
Er, NYT is no measuring stick for liberals. Sorry.
Business. And the sources they relied on for their analysis (Sources: Lee Epstein, Washington University; Andrew D. Martin, University of Michigan; Jeffrey A. Segal, Stony Brook University; Chad Westerland, University of Arizona. Data as of June 10, 2015.) are well regarded legal scholars.
Hmmmm … even the liberal New York Times ?
Like Hillary is going to nominate anyone better.
As implied in my comment below, she can’t even if she were inclined to do so. It’s simply not how SC nominations/confirmations are done. The die was cast for this SC seat all the way back to 1972 in replacing Harlan with Rhenquist, not that Harlen and his predecessor were even mistaken for being liberals, but Harlan would have joined in the unanimous decision in Brown v. Bd of Ed had he been on the court and Rhenquist most likely not.
It’s sort of like the preference among California voters to have one moderate conservative and one liberal Senator. Doesn’t matter if they’re both Republicans, both Democrats, or one of each as long as that liberal/conservative balance is maintained and in line with current prevailing definitions of moderate conservative and liberal.
The problem with traditional boundaries for Supreme Court boundaries is that the Republicans actively want to move the court to the right. Who would Trump nominate? Joel Osteen? Maybe that judge from Alabama.
We’re fucked again. Obama surrendered again. This is what I see in the future for the current Democratic Party.
No, Obama didn’t surrender. As one of the people furthest to the left here (not including you Bob on that general statement) and one of Obama’s harsher critics, I can’t believe all the DEM/liberals here that don’t get that Obama is being Presidential with this nomination.
Republicans played within those boundaries during Ike’s term. When Nixon went far outside the boundaries, he was slapped down. Rhenquist was at the edge of those boundaries. Burger was more than a little step to the right, but still within the boundaries. Ford played well within the boundaries — John Paul Stevens replacing Douglas. Reagan got slapped down with Bork and then went with Kennedy who was within bounds.
As I said, only Thomas and Alito were outside the boundaries and Thomas was more outside than Alito and the DEM Senate at that time confirmed Thomas.
According to Roger Stone, Trump would nominate FauxNews’ Judge Napolitano.
Roger Stone: Judge Napolitano Likely Supreme Court Nominee From Donald Trump
Trump is an ignoramus. DEM Senators did balk when GWB nominated Harriet Myers. And just because Thomas and Alito made it through the guantlet, Bork, Haynesworth, and Carswell didn’t.
Republicans killed Harriet’s nomination.
Okay — even outside the boundaries for Republicans. But we’ll never know what Democrats would have done if Republicans had given her a barely lukewarm pass.
My guess is let her through on the grounds she’d wouldn’t be as bad as Alito. Probably correct, actually, and I think that’s part of the reason the Republicans went so ballistic on her.
They pretty much do not nominate squishes.
Or attorneys that don’t get a “well qualified” rating from the ABA. (Except in the case of Thomas.) GOP Senators did understand that she wouldn’t pass that bar and it would be less embarrassing to yank the nomination than let it go that far.
advocate in her husband’s administration.
I don’t think Obama’s expecting them to accept Garland. I think the real point of the exercise is that by refusing to hold hearings, the Republicans will look even worse than they already do; or by rejecting him even if they do hold hearings.
We’ll see if he withdraws his nomination if Hillary wins, no?
Otherwise is a gift to Republicans of either, or. But is his legitimate choice–he is entitled to his nominee. Sad to see such from a Dem president, though.
I’m not getting your point. What difference does it make if Hillary wins the nomination? That’s not going to change the senate, and in any case Obama’s nominati in any case.
Sorry, the last clause should read, “and in any case Obama’s nomination would expire as soon as he leaves office.”
Unless they are prepared to block all nominees for four years, Hillary would finally get someone in, no?
I think we might assume s(he) would be less attractive to Republican senators, no?
So now, unless Dem Senators are prepared to vote down Obama’s compromise, Republican senators have two doors to choose from in the lame duck session: Door 1 from Obama. Or Door 2 that Clinton will fill in the new Congress.
Given the Hillary hate, I suspect they will wait it out and choose after the election. If Hillary wins, they take Obama’s. If Hillary loses, they let the lame duck session expire. And blow up the filibuster for SC if they can.
They’re not going to take anybody from Obama. And they’re definitely not going to take anybody from Hillary either, not until America pries the senate from their cold, dead hands.
Too many variables can come into play to predict one way or the other. If Obama just let it hangs out there without using the bully pulpit, it could die. OTOH Obama does well when he makes easy to understand proposals that are the average person finds reasonable, he wins.
If he does that in this case and doesn’t drop the issue, and DEM Senate candidates include it in their campaigns, it could be the winning margin for some.
Neglected to include that if forced to wager, I say Garland makes it through confirmation provided Obama doesn’t drop it..
If Garland doesn’t get confirmed he can happily go on as the 10th most powerful jurist in the country until he retires in a few years. A younger jurist like Kelly or Srinivasan, who have a real shot at being appointed by the next Democratic administration, would be dumb to let Obama throw their hat into the ring this time.
So Republican threats win….again.
Appointed to the supreme court there is simply no way I would throw my hat into the ring with this nomination. It pretty much would be the end of my aspirations.
I don’t think so. This appointment brings a good chance of a Supreme Court seat now or in the near future.
First, the Republicans may cave and allow a vote.
Second, the Senate may confirm in the lame duck if Hillary wins.
Third, a Democratic Senate in January may confirm before the new President takes office.
Finally, any candidate subjected to extreme and unconstitutional treatment by the Republicans will become a cause celebre and will be probably the top candidate for appointment the next time there’s a Democratic President and Senate.
The only way this comes out bad for the nominee’s chances if they lose on a partisan but reasonably fair floor vote, and that’s not going to be possible for anybody Obama would appoint, including Garland.
So while this appointment is no slam-dunk, it’s pretty good odds.
it’s not a threat if they actually follow through, we’ll see soon
That’s absurd. They’re not going to confirm anyone. Obama could nominate the re-animated corpse of Ronald Reagan and they’d be issuing press releases about how he’s a left-wing ideologue.
Exactly. You also need a nominee who’s willing to deal with this circus.
So there probably aren’t too many choices.
And keep in mind none of this works (politically) if Obama were to pick a flaming lefty. Then the focus would be on the pick rather than Republican obstruction.
I’d like to see some diversity on the Supreme Court.
From looking at the current members and this nomination one would conclude that there are only two top notch law schools (Harvard and Yale) in this country and only Roman Catholics and Jews are suitable for our highest court.
Sure, but under present circumstances that’s a bit like worrying about how one would rearrange the deck chairs while the Titanic is sinking. The Garland nomination is symbolic only, and diversity is irrelevant to the particular symbolism needed in this situation.
Forty odd years of “sure, but …” on most federal policies. DEMs do have to get real about a replacement for Scalia. SOP for confirmed SC Justices are almost always just a a little bit to the right or a little bit to the left of the predecessor. DEMs lucked out with Souter who was a reasonable successor to Brennan. Sotomayor is to the left of Souter, but Kagan is to the right of John Paul Stevens. Scalia was Rehnquist’s successor; so, maybe just a little bit to the right.
Alito as O’Connor’s replacement was a big leap to the right on civil liberties, particularly women. And Thomas was a huge leap to the right on all issues as Marshall’s replacement. Senate DEMs were in the minority in 2005 and chose not to filibuster the Alito nomination. DEMs controlled the Senate (and the House as well not it matters for SC confirmations) in 1991. When called to back up their electioneering pitch “it’s the SC,” they folded like a cheap suit.
May I repeat. This is a symbolic nominee. There is no way he will be approved. Thank you.
He’ll be confirmed if Clinton wins, and possibly even before the election.
I agree with this. But, lets go with some irrational exuberance for a moment. Lets assume Clinton wins big in November, and the senate ends up in dem hands. What if Garland stepped aside, allowing Clinton to put forward an even more progressive pick? (After, the repubs say “let the voters decide”!) The remaining repubs would filibuster of course, but if the dems change the filibuster rule…
Yeah OK maybe I jumped the shark! But watering down the filibuster rule could allow all sorts of good things to happen legislatively.
I don’t see any reason that Clinton would ask Garland to step aside. It won’t happen, but keep telling the Republicans that it might!
Well, RBG did finish out at Columbia.
Overlooked that fact. Could figure into why she’s been a powerhouse from the left on the court.
Certainly harvard and yale would get behind it. Well of course obama picked the most conservative choice but theyre not going to confirm him so im confining myself to smh.
Obama ought to have nominated me. I would at least enjoy the trip to DC, go to a few museums, etc. Of course I’d have to buy a damn suit for the occasion.
A little early for the cherry blossoms?
Will this pick have any effect on the electorate? Will it highlight the obstructionism of the right to a point that the independents take a lean to the left? To this observer it should, but to me there are a lot of should ofs that have not panned out. Having said that, from a right wing view, perhaps the best thing they could do, with an eye on November, would be to say yes.
If they played this right, like adults, they could say “yes” to Garland and make it a huge issue as to why Republicans need to come out and vote for them in November as only a GOP POTUS can get a Justice Scalia, Thomas, Alito, and Roberts on the bench.
Rebellious teens can rarely be reasoned with. So, they’ll more likely continue shooting themselves in the foot on this matter.
The would certainly be a boost to their presidential chances but it would carry a heavy price. Garland is strongly anti-trust and pro-campaign finance reform and those alone could be a grave danger to corporatism. Of course their obstructionism worsens their chances for the Senate and the Presidency and a Dem President+Senate would be catastrophic for them, so I think you’re right that they’d be best off taking their medicine and making the best of it politically. But it’s still a bitter pill for them.
Kos is pissed.
No, Clinton is a Republican is sheep’s clothing. Clinton might appoint a woman, maybe a woman of color. Maybe a woman of color who works for one of the many corporations who are bankrolling her. It’ll look better in group pictures but it won’t do anything for most of us.
I dont have much argument with that. It should be about re-litigating CU.
Kos appears to have gone off the deep end.
Appears not to have seen or heard anything about her political life over the past 24 years or even last week. (“The Reagan’s got the ball rolling on the AIDs epidemic” and look at that pretty picture of GWB and HRC hugging.) So, what was HRC doing all those years hanging out with and praying with the secretive and GOP dominated “The Family?” When didn’t Bill Clinton appease the GOP?
Do I like the nomination? No. Do I understand it? Yes. Could Obama have done better? No. Neither to get a hearing for a nominee or in the court of public opinion. It’s now in the hands of the GOP — they can either lose public opinion points by acting like spoiled brats or confirm the guy because it’s well within the boundaries of acceptable successors when the Senate is controlled by the opposite political party.
My, I must have eaten my pragmatic and practical granola for breakfast today. Actually, this is who I always am.
Yeah, I don’t understand going off the deep end on this. Obama was going to pick a moderate that, if the Senate was sane, would be confirmed. It’s a reasonable position, and it’s who he is. I actually would disagree that Obama couldn’t do better – Sri would have been my first pick and Kelly my second. AFAICT Sri would be a distinctly better choice based on his overwhelming confirmation vote just 3 years ago. But, Garland is a very good pick. In this era of politicized appointments, he’s a perfectly reasonable appointment with a Democratic President and Republican Senate.
All things considered, including Obama’s short lists, this was the best he could do, IMHO. This time he wasn’t in a position to nominate a candidate that reflected who he (Obama) is; so, I’m indifferent as to whether or not Garland was an authentic first choice for Obama. The court is still too white and too male. However, really don’t like token appointments to diversify the court. Better to wait for the right candidate at the right time — Marshall, Ginsberg, Sotomayor and Kagan all fit that bill for me. Not that I wouldn’t have preferred a woman more liberal than Kagan, but she has a keen mind and the right temperament. Expect Sotomayor will be the one that grows the most as a SC Justice, but Kagan may surprise me and would be happy if she does.
In a better world (the one where Obama weren’t thwarted by the Senate GOP (or the DEM Senators had known how to effectively wield their majority power) and DEMs retained the Senate in 2014 (with better DEM election in 2010, 2012, and 2014), Goodwin Liu would have been confirmed in 2010 and could no move up to the SC. He’s really quite brilliant. Alas, small mistakes tend to reverberate into the future.
Funny how people see in Presidential candidates what they want to see.
Expect this kind of triangulating under the next Clinton regime. Judges who may support abortion but will let the Republican state houses to require them to crawl through broken glass for 72 hours.
Can this guy even be called “liberal”?
Who would Hillary nominate? Probably someone from Goldman Sachs.
advocate in her husband’s administration.
Nina Totenberg is reporting that Republicans floated Garland as a choice they would approve in the lame duck if Hillary won and flipped the Senate.
Okay — so they’re going to go out there for months and tell their rubes that they won’t consider Garland because (??? the black POTUS nominated him?) when the general public doesn’t support not giving an Obama nominee a fair hearing and yet in the not so behind the scenes message is that Garland is okay if one of the GOP clowns doesn’t win in November? If Obama and other high profile DEM politicians can’t squeeze a huge political advantage out of this, then they are lamer than even I thought.
I’m glad to see your comments on this appointment. It sure isn’t a perfect world. I agree that Obama is being practical here. He also needed someone who would be willing to sit through this melee. Garland has little to lose by dint of his age and current job. A move up to the Supremes would be great, but not necessary for him to feel he has accomplished a great deal in his legal life. On the other hand, Sri or some of the younger candidates had a lot to lose.
I’m content with this as a moderate pragmatic choice that reflects Obama’s continued attempt to govern. The Dem candidate needs to do the political part, not Obama.
And the more angry about the nomination the left is, the better (in a way). If the left doesn’t think Garland is left enough, then the middle has to look at him and say “why are we against this guy again?”
Your comment is very polite and rational.
But I must take exception to your last paragraph. I’m far to the left on policy matters than most of the “liberals” that are angry about this nomination. And few days go by when someone doesn’t attack me for being an out of touch, irrational, “Obama-hater,” “Hillary-hater,” etc. I’m none of those things, but it doesn’t stop the attacks.
I do try to contextualize decisions by politicians before offering an opinion. History informs part of my take on this nomination. Current status of the Senate is another consideration. The qualifications/experience of the nominee. For me it all added to being a thoughtful and optimal decision on the part of Obama and whoever he consulted on it. My preference for someone more liberal was irrelevant to assessing the decision. Also had to keep in mind that not being all that liberal didn’t preclude the ability of many prior SC Justices from doing fine or high quality work in their day.
A few years ago I was also completely out of stop with most liberal minded bloggers on the Kelo decision. They struggled to grasp how the liberal wing of the SC could possibly reach such a decision. Whereas it was perfectly clear to me and I agreed with it. Sometimes we don’t think through issues as well as we should before reaching an opinion and once we’ve formed an opinion it’s difficult to backtrack and reconsider it.
Sorry to go expound on this, but it seem opportune to clarify how I approach questions of public policy and politics and few of my comments are more than cut-to-the-chase with details and thought processes excluded and not visible to others. Thus leaving me open to erroneous and false charges and attacks.