President Obama has nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, for the Supreme Court. Last night, displaying my usual powers of prophesy in these matters, I suggested that Garland’s inclusion on the short-list was a “head fake” and that Obama would select someone younger and further to the left. Sometimes you can fake yourself out.
The selection of Garland wasn’t self-evident, though. According to the Washington Post, “initial reaction from interest groups supportive of the president was mixed.” The Post cites comments by Terry O’Neil, president of the National Organization for Women, who called Garland “a cipher — a real nowhere man.”
Actually, I’m pretty sure that Garland has a point of view (and knows where he’s going to). But his point of view and destination probably aren’t perfectly in sync with the hard core leftist Democratic base.
What does Obama hope to achieve with this pick? I’ve always thought the selection would be driven by the goal of making Republicans pay the maximum price for non-confirmation. It seemed to me that this consideration would produce a nominee from a minority group.
Instead, it produced a nominee who is highly respected and not easily portrayed as a left-wing ideologue. The fact that Garland, age 63, is old by today’s standards doesn’t matter much, since he probably won’t be confirmed.
I suppose Obama sees this pick as win-win. Most likely, the Republicans will block Garland and the Democrats will get to cry foul at the obstruction of the respected chief judge of the nation’s second most important court.
Alternatively, in the unlikely event that Garland is confirmed, Obama will have transformed the Supreme Court through another liberal Justice who should be good for 15 to 20 years of service.
UPDATE: Ed Whelan had what I think is the right line on Judge Garland when he compared him to Elena Kagan and Diana Wood back when Obama was filling the last Supreme Court vacancy. Ed wrote:
I have zero illusions that a Justice Garland would help move the Court in the right direction in undoing the damage of decades of liberal judicial activism. I merely have reasonable hopes that he’d move more slowly than the other leading candidates in compounding the damage.
Today, Ed reiterates this view. He expresses his “very high regard for [Garland’s] intellect and his decency” but isn’t remotely arguing that he should be confirmed.
When Justice Kagan was nominated, it made sense to wish for Garland because Republicans lacked the votes to stop Kagan. Now Republicans have the votes to block any Obama nominee and the fact that we’re in a presidential election provides solid ground for doing so, given the historical precedents.
Things might look different in September, if Hillary Clinton is 25 points ahead of Donald Trump in the polls and the Republicans are headed towards losing the Senate. In that event, Garland might look a lot better.
As things stand now, however, Republicans should block this nominee.