Last month, I noted that rumors were growing stronger that Justice Stevens will soon announce his retirement. I also suggested that the rumor mill had cast Elana Kagan, former Dean of Harvard Law School and currently the Solicitor General of the United States, as the frontrunner to replace Stevens.
While I was on vacation, this sort of speculation intensified. For example, this Wall Street Journal story reports that Democrats are divided “over whether President Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.”
Democrats may, in fact, be divided (though probably not evenly) along these lines. But the Journal loses the plot, in my view, when it lists Kagan as one of two candidates who would be unlikely to stoke opposition (the other is Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit). As Ed Whelan argues, “Kagan would be very likely to arouse significant Republican opposition.”
Garland, by contrast, would almost certainly be well-received by Republicans. He has, in Ed’s words, “earned the respect of folks across the political spectrum for his judicial craftsmanship in his 13 years on the D.C. Circuit.”
For this reason, and because he is almost 60 years old, I doubt that the liberal Obama administration is seriously considering Garland for the Supreme Court. Instead, I suspect Garland is being used in three ways by the administration. First, he is being used to create the impression among non-leftists that — as the Journal would have it –Kagan falls into the same relatively benign category he does.
Second, for leftists, Garland serves as a foil. By putting out the name of a sitting judge with a track record the left will find insufficiently liberal, the administration may cause the left to breathe a sigh of relief when Obama picks someone else. It can be argued that something like this happened when the Bush administration stoked rumors that it might well nominate Edith Brown Clement to the Supreme Court.
Third, the inclusion of Garland on a short list provides diversity, as he is a white male. In this respect, Garland’s role may be similar to that played by former Virginia governor Gerald Baliles in President Clinton’s selection an Attorney General. If I recall correctly, Baliles was the only male on a short list leaked by the Clinton transition team. Everyone knew Baliles would not be selected because Clinton was determined to have a female Attorney General, the first in our history. But the females on the list all were eliminated due to minor scandals having to do with nannies or baby sitters.
At that point, instead of selecting Baliles, Clinton abandoned his list and nominated an obscure second-rate prosecutor from Florida — Janet Reno — thus erasing any doubt that Baliles appearance on the short list was a ruse.
I don’t mean to suggest that Obama will not nominate a white male to succeed Justice Stevens. He might. But I doubt he will nominate a less than out-and-out liberal white male such as Garland at a time when the Democrats are one vote shy of a filibuster-proof majority in the Senate. To the extent the White House is putting Garland’s name out, I suspect this too is a ruse.
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